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CASES 



ON 



CONSTITUTIONAL LAW 






SELECTED BY 



JOHN DAY SMITH, M. A., LL. M. 

Lecturer on American Constitutional Law, College of Law, University of Minnesota 



'•:^«^^ OF CO,v , 

r.T^^^r? 3 1896) ^ , 



ST. PAUL, MINN. 

WEST PUBLISHING CO. 

1896 



.St? 



Copyright. 1896. 

BY 

WEST PUBLISHING COMPANY. 



PREFACE. 



The difficnlty experienced by a large body of law students in ob- 
taining access to the United States Supreme Court Reports has led 
to the preparation of this volume. Tlie cases have been selected by 
the author to be studied in connection with his lectures, at the Uni- 
versity of Minnesota, on American constitutional law. With one 
exception they have been taken from the United States Supreme 
Court Reports. For the convenience of students, the Constitution of 
the United States has been inserted. It is not claimed that the 
whole field of American constitutional law has been covered in this 
compilation. The design has been to present those cases only which 
best illustrate the more important principles, leaving to the in- 
structor to add to the list such cases as he may think best. 

JOHN DAY SMITH. 

Minneapolis, Minn., March 10, IS'JO. 

(iii)* 



TABLE OF CONTENTS. 



Establislinient and Amendment of Con- 
stitutions. 



Amendmait of the Federal Constitutiov. 



Hans V. State of Louisiana. 



Page 
. 3 



Tlie United States and the States. 

S(jvereignity of the States — Treaties. 
Fong Yue Ting v. United States 79 

The Federal Executive. 

Pardoning Power. 
Ex parte Garland 214 

Federal Jurisdiction. 

States as Parties. 
Hans V. State of Louisiana 3 



Jurisdiction of Supreme Court. 
United States v. State of Texas 



9 



Powers and Procedure of Federal Courts — 
Habeas Corjnis. 

Cunningham v. Neagle 16 

The Powers of Congi-ess. 

Exclusive and Concurrent Powers. 
United States t. Kagama 30 

Enumerated Powers. 

Willamette Iron Bridge Co. v. Hatch 3-1: 

Bowman v. Chicago & N. W. Ry. Co 41 

Regulation of Commerce. 

Gibbons v. Ogden 57 

Pensacola Tel. Co. v. Western Union Tel. 

Co OS 

Pullman's Palace-Car Co. v. Common- 
wealth of Pennsylvania 71 

Bobbins v. Taxing Dist., Shelby County... 75 

The Police Power. 

Police, Power Vested in Congress. 
Fong Yue Ting v. United States 79 

Police Power of lite States. 

State of Minnesota v. Barber 93 

Wilkerson v. Rahrer. 98 

Budd V. People of State of New York 104 



The Police Power— Continued. 

Police Power of the Sfafes— Continued. 

Page 

Bowman v. Chicago & N. W. Ry. Co 41 

Chicago, M. & St. P. Ry. Co, v. Minnesota.. 113 

Gibbons v. Ogden 57 

Powell V. Commonwealth of Pennsylvania.. 127 

The Power of Taxation. 

Independence of Federal and State Qoverriments. 

Western Union Tel. Co. v. Commonwealth 
of Massachusetts 131 

Pullman's Palace Car Co. v. Common- 
wealth of Pennsylvania 71 

Limitations Imposed by Federal Constitution. 

Hylton V. United States 135 

Pollock v. Farmers' Loan & Trust Co 137 

Limitations Imposed by State Constitutions. 
Loan Association v. Topeka 172 

Civil Rights and their Protection by the 
Constitution. 

Equal Protection of the Laws. 
Civil Rights Cases 176 

Searches and Seizures. 
Boyd V. United States 184 



Political and Public Rights. 

Citizenship. 
Elk V. Wilkius 19S 



Constitutional Guaranties in Criminal 

Cases. 

Privilege against Self- Criminating Evidence- 

Brown v. Walker. United States Marshal.. 199 
Boyd V. United States 184 



liaw^s Impairing the Obligation of 
. Contracts. 

Charters as Contracts. 

Dartmouth College v. Woodward 202 

Stone V. Mississippi 211 



£x Post Facto Laws. 

Validity of Ex Post Facto Statutes. 
Ex parte Garland 214 



SMITH, CONST. LAW 



(V)^ 



CASES REPORTED. 



Page I Page 

Bowman t. Chicago & N. W. Ry. Co. (8 Pullman's PaJace-Car Co. v. Common- 

Sup. Ct. 689. IWZ, 125 U. S. 465).. 41 wealth of Pennsylvania (11 Sup. Ct. 



Boyd V. United States (6 Sup. Ct. 524, 116 

U. S. 616) 184 

Brown v. Walker (70 Fed. 46) 199 

Budd V. People of State of New York (12 
Sup. Ct. 468, 14.3 U. S. 517) 104 

Chicago, M. & St. P. Ry. Co. v. State of 

Minnesota (10 Sup. Ct. 462. 702, 134 U. 

S. 418) 113 

Civil Rights Cases. The (3 Sup. Ct. 18. 

109 U. S. 3) 176 

Cunningham v. Neagle (10 Sup. Ct. 658, 

135 U. S. 1) 16 



Elk V. Wilkins (5 Sup. Ct. 41, 112 U. S. 94) 193 

79 



Fong Yue Ting v. United States (13 Sup 
Ct. 1016. 149 U. S. 698) 



Garland, Ex parte (4 YYall. 333) 214 

Gibbons v. Ogden (9 Wheat. 1) 57 

Hans V. State of Louisiana (10 Sup. Ct. 

504, 134 U. S. 1) 3 

Hylton V. United States (3 Dall. 171) 135 

s 

Lee Joe v. United States (13 Sup. Ct. 

1016, 149 U. S. 698) 79 

Loan Association v. Topeka <'20 Wall. 655) 172 



876, 141 U. S. 18) 71 

Bobbins v. Taxing District of Shelby Co., 
Tennessee (7 Sup. Ct. 592, 120 U. S. 489) 75 

Robinson v. Memphis & Charleston R. 
Co. (3 Sup. Ct. 18, 109 U. S. 3) 176 

State of Minnesota v. Barber (10 Sup. Ct. 

862. 136 U. S. 313) 93 

Stone V. Mississippi (101 U. S. 814) 211 

Trustees of Dartmouth College v. Wood- 
ward (4 Wheat. 518) 202 

United States v. Kagama (6 Sup. Ct. 1109, 

lis U. S. 375) 30 

United States v. Nichols (3 Sup. Ct. 18, 

109 U. S. 3) 176 

United States v. Ryan (3 Sup. Ct. 18. 109 

U. S. 3) 176 

United States v. Singleton (3 Sup. Ct. IS. 

109 U. S. 3) 17f. 

United States v. Stanley (3 Sup. Ct. 18, 

109 U. S. 3) . 176 

United States v. State of Texas (12 Sup. 

Ct. 488. 143 U. S. 621) 9 



Pensacola Tel. Co. v. Western Union Tel. 
Co. (96 U. S. 1) 08 

People of State of New York v. Walsh (12 
Sup. Ct. 468, 143 U. S. 517) 104 

Pollock V. Farmers' Loan & Trust Co. (15 
Sup. Ct. 673. 157 U. S. 429) 137 

Powell V. Commonwealth of Pennsylva- 
nia (8 Sup. Ct. 992, 127 U. S. 678) 127 , 

■ SMITH.CONST.IJAW (vli) 



Western Union Tel. Co. v. Commonwealth 

ofMassachusetts (8 Sup. Ct. 961, 125 U. 

S. 5.30) 131 

Wilkerson v. Rahrer (11 Sup. Ct. 865, 140 

U. S. 545) 98 

Willamette Iron Bridge Co. v. Hatch (8 

Sup. Ct. 811, 125 U. S. 1) 34 

Wong Quan v. United States (13 Sup. Ct. 

1016 146 U. S. 698) 79 



CONSTITUTION OF THE UNITED STATES. 



We the People of the United States, in Order to form a more perfect Union, 
establish Justice, insure domestic Tranquility, provide for the common de- 
fence, promote the general Welfare, and secure the Blessings of L'berty 
to ourselves and our Posterity, do ordain and establish this Constitution 
for the United States of America^ 



ARTICLE. I. 

Section. 1. All legislative Powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate and House 
of Representatives. 

Section. 2. The House of Representatives shall be composed of Members 
chosen every second Year by the People of the several States, and the Elect- 
ors in each State shall have the Qualifications requisite for Electors of the 
jnost numerous Branch of the State Legislature. 

No Person shall be a Representative who shall not have attained to the Age 
of twenty five Years, and been seven Years a citizen of the United States, 
and who shall not, when elected, be an Inhabitant of that State in Avhich 
he shall be chosen. 

Representatives and direct Taxes shall be apportioned among the several 
States Avhich may be included within this Union, according to their respective 
Numbers, [which shall be determined by adding to the whole Number of free 
Persons, including those bound to Service for a Term of Years, and excluding 
Indians not taxed, three fifths of all other persons.] i The actual Enumeration 
shall be made within three Years after the first Meeting of the Congress of 
the United States, and within every subsequent Term of ten Years, in such 
Manner as they shall by Law direct. The Number of Representatives shall 
not exceed one for every thirty Thousand, but each State shall have at 
Least one Representative; and until such enumeration shall be made, the 
State of New Hampshire shall be entitled to chuse three, Massachusetts eight, 
Rhode-Island and Providence Plantations one, Connecticut five, New-York 
six. New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Vir- 
ginia ten. North Carolina five. South Carolina five, and Georgia three. 

When vacancies happen in the Representation from any State, the Execu- 
tive Authority thereof shall i'Ssue Writs of Election to fill such Vacancies. 



1 Superseded by Fourteenth Amendments. 
SMITH, CONST. LAW (ix) 



X CONSTITUTION OF THE UNITED STATES. 

The Hoiise of Representatives shall chuse their Speaker and other Officers; 
and shall have the sole Power of Impeachment. 

Section. 3. The Senate of the United States shall be composed of two Sen- 
ators from each State, chosen by the Legislatm-e thereof, for six Years; and 
each Senator shall have one Vote. 

Immediately after they shall be assembled in Consequence of the first 
Election, they shall be divided as equally as may be into three Classes. The 
Seats of the Senators of the first Class shall be vacated at the Expiration 
of the second Year, of the second Class at the Expiration of the fomth 
Year, and of the third Class at the Expiration of the sixth Year, so that 
one third may be chosen every second Year; and if Vacancies happen by 
Resignation, or otherwise, during the Recess of the Legislature of any State, 
the Executive thereof may make temporary Appointments until the next 
Meeting of the Legislatm-e, which shall then fill such Vacancies. 

No Person shall be a Senator who shall not have attained to the Age of 
thirty Years, and been nine Years a Citizen of the United States, and who 
shall not, when elected, be an Inhabitant of that State for which he shall 
be chosen. 

The Vice President of the United States shall be President of the Senate, 
but shall have no Vote, unless they be equally divided. 

The Senate shall chuse their other Officers, and also a President pro tem- 
pore, in the Absence of the Vice President, or when he shall exercise the 
Office of President of the United States. 

The Senate shall have the sole Power to try all Impeachments. When 
sitting for that Purpose, they shall be on Oath or Affirmation. When the 
President of the United States is tried, the Chief Justice shall preside: And 
no Person shall be convicted without the Concurrence of two thirds of the 
Members present. 

Judgment in Cases of Impeachment shall not extend further than to re- 
moval from Office, and disqualification to hold and enjoy any Office of honor. 
Trust or Profit under the United States: but the Party convicted shall never- 
theless be liable and subject to Indictment, Trial, Judgment and Punishment, 
according to Law. 

Section. 4. The Times, Places and Manner of holding Elections for Senators 
and Representatives, shall be prescribed in each State by the Legislature 
thereof; but the Congress may at any time by Law make or alter such 
Regulations, except as to the Places of chusing Senators. 

The Congress shall assemble at least once in every Year, and such Meeting 
shall be on the first Monday in December, unless they shall by Law appoint 
a different Day. 

Section. 5. Each House shall be the Judge of the Elections, Returns and 
Qualifications of its own Members, and a Majority of each shall constitute 
a Quorum to do Business; but a smaller Number may adjourn from day to 
day, and may be authorized to compel the Attendance of absent Members, 
in such Manner and under such Penalties as each House may provide. 

Each House may determine the Rules of its Proceedings, punish its Mem- 
bers for disorderly Behaviom% and, with the Concurrence of two thirds, 
expel a Member. 

Each House shall keep a Journal of its Proceedings, and from time to 
time publish the same, excepting such Parts as may in their Judgment re- 
quire Secrecy; and the Yeas and Nays of the Members of either House on 
any question shall, at the desire of one fifth of those Present, be entered 
on the Journal. 



CONSTITUTION OF THE UNITED STATES. xi 

Neither House, during the Session of Congress, shall, without the Consent 
of the other, adjourn for more than three days, nor to any other Place than 
that in which the two Houses shall be sitting. 

Section. 6. The Senators and Representatives shall receive a Compensation 
for their Services, to be ascertained by Law, and paid out of the Ti-easury 
of the United States. They shall in all Cases, except Treason, Felony and 
Breach of the Peace, be privileged from Arrest during their Attendance at 
the Session of their respective Houses, and in going to and returning from 
the same; and for any Speech or Debate in either House, they shall not 
be questioned in any other Place. 

No Senator or Representative shall, during the Time for which he was elect- 
ed, be appointed to any civil Office under the Authority of the United States, 
which shall have been created, or the Emoluments whereof shall have been 
encreased dm-ing such time; and no Person holding any Office under the 
United States, shall be a Member of either House dm'ing his Continuance 
in Office. 

Section. 7. All Bills for raising Revenue shall originate in the House of 
Representatives; but the Senate may propose or concur with Amendments 
as on other Bills. 

Every Bill which shall have passed the House of Representatives and the 
Senate, shall, before it become a Law, be presented to the President of the 
United States; If he approve he shall sign it, but if not he shall return it, with 
his Objections to that House in which it shall have originated, Avho shall enter 
the Objections at large on their Journal, and proceed to reconsider it. If 
after such Reconsideration two thirds of that House shall agree to pass the 
Bill, it shall be sent, together with the Objections, to the other House, by 
which it shall likewise be reconsidered, and if approved by two thirds of 
that House, it shall become a Law. But in all such Cases the Votes of 
both Houses shall be determined by yeas and Nays, and the Names of the 
Persons voting for and against the Bill shall be entered on the Journal of 
each House respectively. If any Bill shall not be retm-ned by the President 
within ten Days (Sundays excepted) after it shall have been presented to 
him, the Same shall be a Law, in like Manner as if he had signed it, unless 
the Congress by their Adjournment prevent its Return, in which Case it shall 
not be a Law. 

Every Order, Resolution, or Vote to which the Concurrence of the Senate 
and House of Representatives may be necessary (except on a question of Ad- 
journment) shall be presented to the President of the United States; and be- 
fore the Same shall take Effect, shall be approved by him, or being disap- 
proved by him, shall be repassed by two thirds of the Senate and House of 
Representatives, according to the Rules and Limitations prescribed in the 
Case of a Bill. 

Section. 8. The Congi-ess shall have Power To lay and collect Taxes, 
Duties, Imposts and Excises, to pay the Debts and provide for the common 
Defence and general Welfare of the United States; but all Duties, Imposts 
and Excises shall be uniform throughout the United States; 

To borrow Money on the credit of the United States; 

To regulate Commerce with foreign Nations, and among the several States, 
and with the Indian Tribes; 

To establish an uniform Rule of Natm-alization, and uniform Laws on the 
subject of Bankruptcies throughout the United States; 

To coin Money, regulate tffe Value thereof, and of foreign Coin, and fix the 
Standard of Weights and Measures; 



xii CONSTITUTION OF THE UNITED STATES. 

To provide for the Punishment of counterfeiting the Securities and current 
Coin of tlie United States; 

To establish Post Othces and post Roads; 

To promote the Progress of Science and useful Arts, by securing for limited 
Times to Authors and Inventors the exclusive Right to their respective Writ- 
ings and Discoveries; 

To constitute Tribunals inferior to the supreme Court; 

To detine and punish Piracies and Felonies committed on the high Seas, 
and Offences against the Law of Nations; 

To declare War, grant Letters of Marque and Reprisal, and make Rules 
concerning Captures on Land and Water; 

To raise and support Armies, but no Appropriation of Money to that Use 
shall be for a longer Term than two Years; 

To provide and maintain a Navy; 

To make Rules for the Government and Regulation of the land and naval 
Forces; 

To provide for calling forth the Militia to execute the Laws of tlie Union, 
suppress Insurrections and repel Invasions; 

To provide for organizing, arming, and disciplining, the Militia, and for 
governing such Part of them as may be employed in the Service of the United 
States, reserving to the States respectively, the Appointment of the Officers, 
and the Authority of training the Militia according to the discipline pre- 
scribed by Congress; 

To exercise exclusive Legislation in all Cases whatsoever, over such Dis- 
trict (not exceeding ten Miles square) as may, by Cession of particular States, 
and the Acceptance of Congress, become the seat of the Government of the 
United States, and to exercise like Authority over all Places purchased by 
the Consent of the Legislature of the State in which the Same shall be, for 
the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful 
Buildings;— And 

To make all Laws which shall be necessary and proper for eaiTying into 
Execution the foregoing Powers, and all other Powers vested by this Consti- 
tution in the Government of the United States, or in any Department or Of- 
ficer thereof. 

Section. 9. The Migration or Importation of such Persons as any of the 
States now existing shall think proper to admit, shall not be prohibited by 
the Congi-ess prior to the Year one thousand eight hundred and eight, but a 
Tax or duty may be imposed on such Importation, not exceeding ten dollars 
for each Person. 

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless 
when in Cases of Rebellion or Invasion the public Safety may require it. 
No Bill of Attainder or ex post facto Law shall be passed. 
No Capitation, or other direct. Tax shall be laid, unless in Proportion to 
the Census or Enumeration herein before directed to be taken. 
No Tax or Duty shall be laid on Articles exported from any State. 
No Preference shall be given by any Regulation of Commerce or Revenue 
to the Ports of one State over those of another: nor shall Vessels bound to, 
or from, one State, be obliged to enter, clear, or pay Duties in another. 

No Money shall be drawn from the Treasury, but in Consequence of Ap- 
propriations made by Law; and a regular Statement and Account of the Re- 
ceipts and Expenditures of all public Money shall be published from time to 
time. 



CONSTITUTION OF THE UNITED STATES. XUl 

No Title Of Nobility shall be gmnted by the United States: And no Person 
holding any Office of Profit or Trust under them, shall, without the Consent 
of the Congress, accept of any present, Emolument, Office, or Title, of any 
kind whatever, from any King, Prince, or foreign State. 

Section. 10. No State shall enter into any Treatj% Alliance, or Confedera- 
tion; grant Letters of Marque and Reprisal; coin Money; emit Bills of 
Credit; make any Thing but gold and silver Coin a Tender in Payment of 
Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the 
Obligation of Contracts, or grant any Title of Nobility. 

No State shall, without the Consent of the Congi-ess, lay any Imposts or 
Duties on Imports or Exports, except what may be absolutely necessary for ex- 
ecuting it's inspection Laws: and the net Produce of all Duties and Imposts, 
laid by any State on Imports or Exports, shall be for the Use of the Treasury 
of tJie United States; and all such Laws shall be subject to the Revision and 
Controul of the Congress. 

No State shall, without the Consent of Congress, lay any Duty of Tonnage, 
keep Troops, or Ships of War in time of Peace, enter into any Agreement 
or Compact with another State, or with a foreign Power, or engage in War, 
unless actually invaded, or in such imminent Danger as wiU not admit of 
delay. 

ARTICLE. IL 

Section. 1. The Executive Power shall be vested in a President of the 
United States of America. He shall hold his Office during the Term of fom- 
Years, and, together with the Vice President, chosen for the same Term, be 
elected, as follows 

Each State shall appoint, in such Manner as the Legislature thereof may 
direct, a Number of Electors, equal to the whole Number of Senators and 
Representatives to which the State may be entitled in the Congress: but no 
Senator or Representative, or Person holding ah Office of Trust or Profit 
under the United States, shall be appointed an Elector. 

[The Electors shall meet in their respective States, and vote by Ballot for 
two Persons, of whom one at least shall not be an Inhabitant of the same 
State with themselves. And they shall make a List of all the Pei'sons voted 
for, and of the Number of Votes for each; which List they shall sign and 
certify, and transmit sealed to the seat of the Government of the United States, 
directiid to the President of the Senate. The President of the Senate shall, 
in the Presence of the Senate and House of Representatives, open all the Cer- 
tificates, and the Votes shall then be cotmted. The Person having the great- 
est Number of Votes shall be the President, if such Number be a Majority 
of the whole Number of Electors appointed; and if there be more than one 
who have such Majority, and have an equal Number of votes, then the House 
of Representatives shall immediately chuse by Ballot one of them for Presi- 
dent; and if no Person have a majority, then from the five highest on the 
List the said House shall in like Manner chuse the President. But in chusing 
the President, the Votes shall be taken by States, the Representation from 
each State having one Vote; A quorum for this Purpose shall consist of a 
Member or Members from two thirds of the States, and a Majority of all the 
States shall be necessary to a Choice. In every Case, after the Choice of the 
President, the Person having the greatest Number of Votes of the Electors 
shall be the Vice President. But if there should remain two or more who 



^IV CONSTITUTION OF THE UNITED STATES. 

have equal Votes, the Senate shall chuse from them by Ballot the Vice Presi- 
dent.] 2 

The Congress may determine the Time of chusing the Electors, and the 
Day on which they shall give their Votes; which Day shall be the same 
throughout the United States. 

No Person except a natural bora Citizen, or a Citizen of the United States, 
at the time of the Adoption of this Constitution, shall be eligible to the Otflce 
of President; neither shall any Person be eligible to that Office who shall 
not have attained to the Age of thirty five Years, and been fom-teen Years 
a Resident within the United States. 

In Case of the Removal of the President from Oflice, or of his Death, Resig- 
nation, or Inability to discliarge the Powers and Duties of the said Office, the 
Same shall devolve on the Vice President, and the Congress may by Law 
provide for the Case of Removal, Death, Resignation or Inability, botli of 
the President and Vice President, declaring what Officer shall tlien act as 
President, and such Officer shall act accordingly, until the Disability be re- 
moved, or a President shall be elected. 

The President sliall, at stated Times, receive for his Services, a Compen- 
sation, wliich shall neither be encreased nor diminished during the Period for 
which he shall have been elected, and he shall not receive within that Period 
any other Emolument from the United States, or any of them. 

Before he enter on the Execution of his Office, he shall take the following 
Oath or Affirmation:— "I do solemnly swear (or affirm) that I will faithfmiy 
execute the Office of President of the United States, and will to the best of 
my Ability, preserve, protect and defend the Constitution of the United 
States." 

Section. 2. The President shall be Commander in Chief of the Army and 
Navy of the United States, and of the Militia of the several States, when 
called into the actual Service of the United States; he may require the 
Opinion, in writing, of the principal Officer in each of the executive De- 
partments, upon any Subject relating to the Duties of theu- respective Of- 
fices, and he shall have Power to grant Reprieves and Pardons for Olfences 
against the United States, except in Cases of Impeachment. 

He shall have Power, by and with the Advice and Consent of the Senate, 
to make Treaties, provided two thirds of the Senators present concur; and he 
shall nominate, and by and with the Advice and Consent of the Senate, shall 
appoint Ambassadors, other public Ministers and Consuls, Judges of the su- 
preme Court, and all other Officers of the United States, whose Appoint- 
ments are not herein otherwise provided for, and which shall be estab- 
lished by Law: but the Congress may by Law vest the Appointment of 
such inferior Officers, as they think proper, in the President alone, in the 
Courts of Law. or in the Heads of Departments. 

The President shall have Power to fill up all Vacancies that may happen 
during the Recess of the Senate, by granting Commissions which shall ex- 
pire at the End of their next Session. 

Section. 3. He shall from time to time give to the Congress Information of 
the State of the Union, and recommend to their Consideration such Measures 
as he shall judge necessary and expedient; he may, on extraordinary Occa- 
sions, convene both Houses, or either of them, and in Case of Disagreement 
between them, with Respect to the Time of Adjournment, he may adjourn 
them to such Time as he shall think proper; he shall receive Ambassadors 
and other public Ministers: he shall take Care that the Laws be faithfully 
executed, and shall Commission aU the Officers of the United States. 



'Superseded by Twelfth Amendment. 



CONSTITUTION OF THE UNITED STATES. XV 

Section. 4. The President, Vice President and all civil Officers of the United 
States, shall be removed from Office on Impeachment for, and Conviction of, 
Tx'eason, Bribery, or other high Crimes and Misdemeanors. 



ARTICLE. III. 

Section. 1. The judicial Power of the United States, shall be vested in one 
supreme Court, and in such inferior Courts as the Congi-ess may from time 
to time ordain and establisli. The Judges, both of the supreme and inferior 
Courts, shall hold their Othces diu'ing good Behaviour, and shall, at stated 
Times, receive for their Sei"vices, a Compensation, which shall not be dimin- 
ished during their continiiance in Office. 

Section. 2. The judicial Power shall extend to all Cases, in Law and Eq- 
uity, arising imder this Constitution, the Laws of the United States, and 
Treaties made, or which shall be made, imder their Authority ;— to all Cases 
aifecting Ambassadors, other public Ministers and Consuls;— to all Cases of 
admiralty and maritime Jurisdiction;— to Controversies to which the United 
States shall be a Party; — to Controversies between two or more States;— 
between a State and Citizens of another State; 3 — between Citizens of differ- 
ent States,— between Citizens of the same State claiming Lands under Grants 
of diffei-ent States, and between a State, or the Citizens thereof, and foreign 
States, Citizens or Subjects. 

In all Cases affecting Ambassadors, other public Ministei-s and Consuls, 
and those in which a State shall be Party, the supreme Court shall have 
original Jurisdiction. In all the other Cases before mentioned, the su- 
preme Coiu-t shall have appellate Jurisdiction, both as to Law and Fact, 
witli such Exceptions, and imder sucli regulations as the Congi'ess shall make. 

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; 
and such Trial shall be held in the State where the said Crimes shall have 
been committed; but when not committed within any State, the Trial shall 
be at such Place or i'laces as the Congress may by Law have directed. 

Section. 3. Treason against the United States, shall consist only in levying 
War against them, or in adhering to their Enemies, giving them Aid and 
Comfort. No person shall be convicted of Treason unless on the Testimony 
of two Witnesses to the same overt Act, or on Confession in open Court. 

The Congress shall have Power to declare the Punishment of Treason, but 
no Attainder of Treason shall work Corruption of Blood, or Forfeiture ex- 
cept dm'ing the Life of the Person attainted. 



ARTICLE. IV. 

Section. 1. Full Faith and Credit shall be given in each State to the public 
Acts, Records, and judicial Proceedings of every other State. And the Con- 
gress may by general LaAvs prescribe the Manner in which such Acts, Rec- 
ords and Proceedings shall be proved, and the Effect thereof. 

Section. 2. The Citizens of each State shall be entitled to all Privileges 
and Immunities of Citizens in the several States. 

A Person charged in any»State with Treason, Felony, or other Crime, who 
shall flee fi'om Justice, and be found in another State, shall on Demand of 

'^ Limited by the Eleventh Amendment. 



XVI CONSTITUTION OF THE UNITED STATES. 

the executive Authority of the State from which he fled, be delivered up, to 
be removed to the State having Jurisdiction of the Crime. 

No Person held to Service or Labour in one State, under the Laws thereof, 
escaping into another, shall, in Consequence of any Law or Regulation 
therein, be discharged from such Service or Labom*, but siiall be delivered 
up on Claim of the Party to whom such Service or Labour may be due. 

Section. 3. New States may be admitted by the Congress into this Union; 
but no new State shall be formed or erected within the Jurisdiction of any 
other State; nor any State be formed by the Junction of two or more States, 
or Parts of States, without the Consent of the Legislatures of the States con- 
cerned as well as of the Congress. 

The Congress shall have Power to dispose of and make all needful Rules 
and Regulations respecting the Territory or other Property belonging to the 
United States; and nothing in this Constitution shall be so construed as to 
Prejudice any Claims of the United States, or of any particular State. 

Section. 4. The United States shall giuirantee to every State in this Union 
a Republican Form of Government, and shall protect each of them against In- 
vasion; and on Application of the Legislature, or of the Executive (when the 
Legislature cannot be convened) against domestic Violence. 



ARTICLE. V. 

The Congress, whenever two thirds of both Houses shall deem it necessary, 
shall propose Amendments to this Constitution, oi", on the Application of the 
Legislatures of two thirds of the several States, shall call a Convention for 
proposing Amendments, which, in either Case, shall be valid to all Intents 
and Pm-poses, as Part of this Constitution, when ratified by the Legislatures 
of three fourths of the several States, or by Conventions in three fomi:hs 
thereof, as the one or the other Mode of Ratification may be proposed by the 
Congi'ess; Provided that no Amendment which may be made prior to the 
Year One thousand eight hundred and eight shall in any Manner affect the 
first and fourth Clauses in the Ninth Section of the fii-st Article; and that 
no State, without its Consent, shall be deprived of it's equal Suffrage in 
the Senate, 

ARTICLE. VL 

All Debts contracted and Engagements entered into, before the Adoption 
of this Constitution, shall be as valid against the United States under this 
Constitution, as under the Confederation. 

This Constitution, and the Laws of the United States which shall be made 
in Pursuance thereof; and all Treaties made, or which shall be made, under 
the Authority of the United States, shall be the .supreme Law of the Land; 
and the Judges in every State shall be bound thereby, any Thing in the Con- 
stitution or Laws of any State to the Contrary notwithstanding. 

The Senators and Representatives before mentioned, and the Members of 
the several State Legislatures, and all executive and judicial Officers, both of 
the United States and of the several States, shall be bovmd by Oath or Af- 
firmation, to support this Constitution; but no religious Test shall ever be 
required as a Qualification to any Office of public Tiiist under the United 
States. 



CONSTITUTION OF THE UNITED STATES, 



XVii 



ARTICLE. VII. 



The Ratification of the Conventions of nine States, shall be sufficient for 
the Establishment of this Constitution between the States so ratifying the 
Same. 

Done in Convention by the Unanimous Consent of the States present 
the Seventeenth Day of Septembev in the Year of our Lord one 
thousand seven hundred and Eighty seven and of the Indepeudance 
of the United States of America the Twelfth IN WITNESS whereof 
We have hereunto subscribed our Names. 

Go: WASHINGTON— Presidt. 

and deputy from Virginia. 
Attest William Jackson, Secretary. 



New Hampsliire. 
John Langdon 
Nicholas Gilsfan 

Massachusetts. 
Nathaniel Goriiam 
RuFus King 

Gonnectieut, 
Wm : Saml Johnson 
Roger Sherman 

Neio York. 
Alexander Hamiltox 

New Jexsey. 

WiL : LiVrNGSTON 

David Brearley 
Wm. Paterson 
JoNA : Dayton 

Pennsylvania. 
B Franklin 
Thojias Mifflin 
RoBT. Morris 
Geo. Clymer 
Tiios. FiTz Simons 
Jared Ingersoll 
James Wilson 
Gouv Morris 



Dclairnre. 
Geo : Read 

Gunning Bedford juu 
John Dickinson 
Richard Bassett 
Jaco : Broom 

M((r//Iand. 
James McHkxry 
Dan op St. Tugs. Jenifer 
Danl Carroll 

Virginia. 
John Blair — 
James Madison Jr. 

North CaroUna. 
Wm : Blount 
RiCHD. DoBBs Spaight 
Hu Williamson 

South Carolina. 
,1. Rutledge 

Charles Cotesworth Pincknet 
Charles Pinckney 
Pierce Butler. 

Georgia^ 
William Few 
Abr Bat>dwin 



SMITH, CONST. LAW- 



?:V111 AMENDMENTS OF THE CONSTITUTION. 



AMENDMENTS OF THE CONSTITUTION/ 

FIRST. Dec. 15, 1791. Congress shall make no law respecting an estabr 
lishnieut of relig:ion. or prohibiting the free exercise thereof; or abridging the 
freedom of speech, or of the press; or the right of the people peaceably to as- 
semble, and to petition the Government for a redress of grievances. 

. SECOND. 1791. A well regulated Militia, being necessary to the security 
of a free State, the right of the people to keep and bear Arms, shall not be 
infringed. 

THIRD. 1791. No Soldier .sh.-ill, in time of peace be quartered in any 
house, without the consent of the Owner, nor in time of war, but in a man- 
ner to be prescribed by law. 

FOURTH. 1791. The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches and seizures, shall 
not be violated, and no Warrants shall issue, but upon probable cause, sup- 
ported by Oath or affirmation, and particularly describing the place to be 
searched, and the persons or things to be seized. 

FIFTH. 1791. No person shall be held to answer for a capital, or otherwise 
infamous crime, xmless on a presentment or indictment of a Grand Jury, ex- 
cept in cases arising in the land or naval forces, or in the Militia, when in 
actual service in time of War or public danger; nor shall any person be 
subject for the same offence to be twice put in jeopardy of life or limb; nor 
shall be compelled in any Criminal Case to be a witness against himself, nor 
t>e deprived of life, liberty, or property, without due process of law; nor 
shall private property be taken for public use, without just compensation. 

SIXTH. 1791. In all criminal prosecutions, the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury of the State and dis- 
trict wherein the crime shall have been committed, which district shall have 
been previously ascertained by law. and to be informed of the nature and 
cause of the accusaiion; to be confronted with the witnesses against him; 
to have compulsory process for obtaining Witnesses in his favor, and to 
have the Assistance of Counsel for his defence. 

Seventh. 1791. in suits at common law, where the value in controversy 
shall exceed twenty dollars, the right of trial by jury shall be preserved, and 
no fact tried by a jury shall be otherwise re-examined in any Court of the 
United States, than according to the rales of the common law. 

EIGHTH. 1791. Excessive bail shall not be required, nor excessive fines im- 
posed, nor cruel and unusual punishments inflicted. 

NINTH. 1791. The enumeration in the Constitution, of certain rights, shall 
not be constnied to deny or disparage others retained by the people. 

TENTH. 1791. The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are reserved to the States 
respectively, or to the people. 

ELEVENTH. Jan. 8, 1798. The Judicial power of the United States shall 
not be construed to extend to any suit in law or equity, commenced or prose- 
cuted against one of the United States by Citizens of another State, or by 
Citizens or Subjects of any Foreign State. 

* All the Amendments to the Constitution were proposed by Congress. 



AMENDMENTS OF THE CONSTITUTION. XIX 

TWELFTH. Sept 25, 1804. The Electors shall meet in their respective 
states, and vote by ballot for President and Vice President, one of whom, at 
least, shall not be an inhabitant of the same state with themselves; they shall 
name in their ballots the person voted for as President, and in distinct ballots 
the person voted for as Vice-President, and they shall make distinct lists of 
all persons voted for as President, and of all persons voted for as Vice-Presi- 
dent, and of the number of votes for each, which hsts they shall sign and 
certify, and transmit sealed to the seat of the g-overnment of the United 
States, directed to the President of the Senate;— The President of the Senate 
shall, in presence of the Senate and House of Representatives, open all the 
certificates and the votes shall then be counted;— The person having the great- 
est number of votes for President, shall be the President, if such number be 
a majority of the whole number of Electors appointed; and if no person have 
such majority, then from the persons having the highest numbers not ex- 
ceeding three on the list of those voted for as President, the House of Rep- 
resentatives shall choose immediately, by ballot, the President. But in 
choosing the President, the votes shall be taken by states, the representa- 
tion from each state having one vote; a quoi-um for this pm-pose shall con- 
sist of a member or members from two-thirds of the states, and a majority 
of all the states shall be necessary to a choice. And if the House of Repre- 
sentatives shall not choose a President whenever the right of choice shall 
devolve upon them, before the fourth day of March next following, then the 
Vice-President shall act as President, as in the case of the death or other 
constitutional disability of the President. The person having the gi-eatest 
number of votes as Vice-President, shall be the Vice-President, if such num- 
ber be a majority of the whole number of Electors appointed, and if no per- 
son have a majority, then from the two highest numbers on the list, the Sen- 
ate shall choose the Vice-President; a quorum for the pm-pose shall consist 
of two-thii'ds of the whole number of Senators, and a majority of the whole 
number shall be necessary to a choice. But no person constitutionally in- 
eligible to the office of President shall be eligible to that of Vice-President of 
the United States. 

TFIIRTEBNTH. Dec. 18, 1865. Section 1. Neither slavery nor involuntaiy 
servitude, except as a punishment for crime whereof the party shall have 
been duly convicted, shall exist within the United States, or any place sub- 
ject to their jurisdiction. 

Section 2. Congress shall have power to enforce this article by appropriate 
legislation. 

FOURTEENTH. July 28, 1868. Section 1. All persons born or naturalized 
in the United States, and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they reside. No State shall make 
or enforce any law which shall abridge the privileges or immunities of citi- 
zens of the United States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor deny ta any person 
within its jurisdiction the equal protection of the laws. 

Section 2. Representatives shall be apportioned among the several States 
according to their respective numbers, counting the whole number of persons 
in each State, excluding Indians not taxed. But when the right to vote at 
any election for the choice of electors for President and Vice President of 
the United States, Representatives in Congress, the Executive and Judicial 
officers of a State, or the r^embers of the Legislature thereof, is denied to 
any of the male inhabitants of such State, being twenty-one years of age, 
and citizens of the United States, or in any way ^.bridged, except for par- 



XX AMENDMENTS OF THE CONSTITUTION. 

ticipation in rebellion, or other crime, the basis of representation therein 
shall be reduced in the proportion which the number of such male citizens 
shall bear to the whole number of male citizens twenty -one years of age in 
such State. 

Section 3. No person shall be a Senator or Representative in Congress, or 
elector of President and Vice President, or hold any office, civil or military, 
under the United States, or under any State, who, having previously taken 
an oath, as a member of Congi-ess, or as an officer of the United States, or as 
a member of any State legislature, or as an executive or judicial officer of 
any State, to support the Constitution of the United States, shall have engaged 
in insiirrec^ion or reliellion against the same, or given aid or comfort to the 
enemies thereof. But Congress may by a vote of two-thirds of each House, 
remove sucli disability. 

Section 4. The validity of the public debt of the United States, authorized 
by law, including debts iucm'red for payment of pensions and bounties for 
services in suppressing insurrection or rebellion, sliall not be questioned. But 
neither the United States nor any State .slaall assume or pay any debt or 
obligation incurred in aid of insurrection or rebellion against the United 
States, or any claim for tlie loss or emancipation of any slave; but all such 
debts, obligations and claims shall be held illegal and void. 

Section 5. The Congress shall have power to enforce, by appropriate legis- 
lation, the provisions of this article. 

FIFTEENTH. :March 30, 1870. Section 1. The right of citizens of the 
United States to vote shall not be denied or abridged by the United States 
or by any State on accoxmt of race, color, or previous condition of servitude. 

Section 2. The Congress sliall have power to enforce this article by appro- 
priate legislation, 

t 



ILLUSTRATIVE CASES 



ON 



CONSTITUTIONAL LAW. 



SMITH.CONST.LAW. 



ay 



ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. 



HANS V. STATE OF LOUISIANA.i 

(10 Sup. Ct. 504, 134 U. S. 1.) 

Supreme Court of the United States. March 
3, 1890. 

In error to the circuit court of the Unit- 
ed States for the eastern district of Louis- 
iana. 

,7. D. Rouse and Wm. Grant, for plain- 
tiff in error. W. H. Rogers, B. J. Sage, and 
Alex. Porter Morse, for defendant in error. 

BRADLEY, J. This is an action brought 
in the circuit court of the United States, 
in December, 1884, against the state of 
Louisiana, by Hans, a citizen of that state, 
to recover the amount of certain coupons 
annexed to bonds of the state, issued un- 
der the provisions of an act of the legisla- 
ture approved January 24, 1874. The bonds 
are known and designated as the "consol- 
idated bonds of the state of Louisiana," 
and the coupons sued on are for interest 
which accrued January 1, 1880. The 
grounds of the action are stated in the pe- 
tition as follows : "Your petitioner avers 
that by the issue of said bonds and cou- 
pons said state contracted witli and agreed 
to pay the bearer thereof the principal sum 
of said bonds forty years from the date 
thereof, to-wit, the 1st day of January, 
1874, and to pay the interest thereon repre- 
sented by coupons as aforesaid, including 
the coupons held by your petitioner, semi- 
annually upon the maturity of said cou- 
I)ons ; and said legislature, by an act ap- 
proved January 24, 1874, proposed an 
amendment to the constitution of said 
state, which was afterwards duly adopted, 
and is as follows, to-wit: 'No. 1. The is- 
sue of consolidated bonds, authorized by 
the general assembly of the state at its reg- 
ular session in the year 1874, is hereby de- 
clared to create a valid contract between 
the state and each and every holder of said 
bonds, which the state shall by no means 
and in no wise impair. The said bonds 
shall be a valid obligation of the state in 
favor of any liolder thereof, and no court 
shall enjoin the payment of tlie principal 
or interest thereof or the levy and collec- 
tion of the tax therefor. To secure such 
levy, collection, and payment the judicial 
power shall be exercised when necessary. 
The tax required for the payment of the 
pi-incipal and interest of said bonds shall 
be assessed and collected each and every 
year until the bonds shall be paid, princi- 
pal and interest, and tlie proceeds shall be 
paid by the treasurer of the state to the 
holders of said bonds as the principal and 
interest of the same shall fall due, and no 
further legislation or appropriation shall 
be requisite for the said assessment, and 
collection and for such payment from the 
treasury.' And petitioner furrier avers 
that, notwithstanding said solemn com- 
pact with the holders of said bonds, said 
state hath refused and still refuses to pay 
said coupons held by petitioner, and by 
its constitution, adopted in 1879, or- 
dained as follows: 'That the coupons of 
said consolidated bonds falling due the 1st 
of January, 18s0, be, and thesameis hereby, 
remitted, and any interest taxes collected 

lAffirming 24 Fed. Rep. 55. 



to meet said coupons are hereby trans- 
ferred to defray the expenses of the state 
government;' and by article 257 of said 
constitution also prescribed that 'the con- 
stitution of this state, adopted in 1868, and 
all amendments thereto, is declared to be 
superseded by this constitution ; ' and said 
state thereby undertook to repudiate her 
contract obligations aforesaid, and to 
prohibit her officers and agents executing 
the same, and said state claims that by 
said provisions of said constitution she is 
relieved from the obligations of her afore- 
said contract, and from the payment of 
said coupons held by petitioner, and so re- 
fuses payment thereof, and has prohibited 
her officers and agents making such pay- 
ment. Petitioner also avers that taxes 
for the payment of the interest upon said 
bonds due January 1,1880, were levied, as- 
sessed, and collected, l3ut said state unlaw- 
fully and wrongfully diverted the money so 
collected, and appropriated the same to 
payment of the general expenses of the 
state, and has made no other pro vision for 
the payment of said interest. Petitioner 
also avers that said provisions of said con- 
stitution are in contravention of said con- 
tract, and their adoption was an active 
violation thereof, and that said state there- 
by sought to impair the validity thereof 
with your petitioner, in violation of article 
1, section 10, of the constitution of the 
United States, and the effect so given to 
said state constitution does impair said 
contract. Wherefore petitioner prays that 
the state of Louisiana be cited to answer 
this demand, and that after due proceed- 
ings she be condemned to pay your peti- 
tioner said sum of ($87,500) eighty-seven 
thousand five hundred dollars, with legal 
interest from January 1, 1880, until paid, 
and all costs of suit; and petitioner prays 
for general relief. " 

A citation being issued, directed to the 
state, and served upon the governor there- 
of, the attorney general of the state filed 
an exception, of which the following is a 
copy, to-wit: "Now comes defendant, by 
the attorney general, and excepts to plain- 
tiff's suit, on the ground that this court is 
without jurisdiction ratione persouse. 
Plaintiff cannot sue the state without its 
permission; the constitution and law^s do 
not give this honorable court jurisdiction 
of a suit against the state; and its juris- 
diction is respectfully declined. Wherefore 
responc\jgnt prays to be hence dismissed, 
with costs, and for general relief." By the 
judgment of the court this exception was 
sustained, and the suit was dismissed. 
See Hans v. Louisiana, 24 Fed. Rep. 55. 
To this judgment the present writ of error 
is brought; and the question is presented 
whether a state can be sued in a circuit 
court of the United States by one of its 
own citizens upon a suggestion tliat the 
case is one that arises under the constitu- 
tion or laws of the United States. 

The ground taken is that under the con- 
stitution, as well as under the act of con- 
gress passed to carry it into effect, a case 
is within the jurisdiction of the federal 
courts, without regard to the character of 
the parties, if it arises under the constitu- 
tion or laws of the United States, or, which 
is the same thing, if it necessarily involves 



ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. 



a. question undersaidconstitution or laws. 
The language relied on is that clause of the 
third article of the constitution, which de- 
clares that "the judicial power of the Unit- 
ed States shall extend to all cases in law 
and equity arising under this constitution, 
the laws of the United States, and treaties 
made, or which shall be made, under their 
authority ; " and the corresponding clause 
of the act conferring jurisdiction upon the 
circuit court, which, as found in the act 
of March 3,1875, is as follows, to-wit: 
" That the circuit courts of theUnited States 
shall have original cognizance, concurrent 
with the courts of the several states, of 
all suits of a civil nature, at common law 
or in equity, * * * arising under the 
constitution or laws of the United States, 
or treaties made, or which shall be made, 
under their authority." It is said that 
these jurisdictional clauses make no excep- 
tion arising from the character of the par- 
ties, and therefore that a state can claim 
no exemption from suit, if the case is real- 
ly one arising under theconstitution,laws, 
or treaties of the United States. It is con- 
ceded that, where the jurisdiction depends 
alone upon the character of the parties, a 
controversy between a state and its own 
citizens is not embraced within it; butitis 
contended that, though jurisdiction does 
not exist on that ground, it nevertheless 
does exist if the caseit.self is one which nec- 
essarily involves a federal question; and, 
with regard to ordinary parties, this is un- 
doubtedly true. The question now to be 
decided is whether it is true where one of 
the parties is a state, and is sued as a de- 
fendant by one of its own citizens. 

That a state cannot be sued by a citizen 
of another state, or of a foreign state, on 
the mere ground that the case is one aris- 
ing under the constitution or laws of the 
United States, is clearly established by the 
decisions of this court in several recent 
cases. Louisiana v. Jumel, 107 U. S. 711, 
2 Sup. Ct. Rep. 128; Hagood v. Southern, 
117 U.S. 52, 6 Sup. Ct. Rep. 608; In reAyers, 
123 U. S. 443, 8 Sup. Ct. Rep. 164. Those 
were ca.ses arising under the constitution 
of the United States, upon laws com- 
plained of as impairing the obligation of 
contracts, one of which was the constitu- 
tional amendment of Louisiana, com- 
plained of in tlie present case. Relief was 
sought against state officers who professed 
to act in obedience to those laws. This 
court held that the suits were ^rtually 
against the states themselves, and were 
consequently violative of the eleventh 
amendment of the constitution, and could 
not be maintained. It was not denied 
that they presented cases arising under 
the constitution; but, notwithstanding 
tiiat, they were held to be prohibited by 
the amendment referred to. 

In tlie present case the plaintiff in error 
contends that he, being a citizen of Louis- 
iana, is not embarrassed by the obstacle 
of the eleventh amendment, inasmuch as 
that amendment only prohibits suits 
against a state which are brought by the 
citizens of another state, or by citizens or 
subjects of a foreign state. It is true the 
amendment does so read, and, if there were 
no other reason or ground for abating his 
suit, it might be maintainable; and then we 



should have this anomalous result, that, 
in cases arising under the constitution 
or laws of the United States, a state may 
be sued in the federal courts by its own 
citizens, though it cannot be sued for a 
like cause of action by the citizens of other 
states, or of a foreign state; and may be 
thus sued in the federal courts, although 
n(jt allowing itself to be sued in its own 
courts. If this is the necessary consequence 
of the language of the constitution and the 
law, tlie result is no less startling and un- 
expected than was the original decision of 
this court, that, under the language of the 
constitution and of the judiciary act of 
1789, a state was liable to be sued by a cit- 
izen of another state or of a foreign coun- 
try. That decision was made in the case 
of Chisholm v. Georgia, 2 Ball. 419, and cre- 
ated such a shock of siirprise throughout 
the country that, at the finst meeting of 
congress thereafter, the eleventh amend- 
ment to theconstitution was almost unan- 
imously proposed, and was in due course 
adopted by the legislatures of the states. 
This amendment, expressing the will of the 
ultimate sovereignty of the whole country, 
superior to all legislatures and all courts, 
actually reversed the decision of the su- 
preme court. It did not in terms prohibit 
suits by individuals against the states. 
but declared that the constitution should 
not be construed to import any power to 
authorize the bringing of such suits. The 
language of the amendment is that "the 
judicial power of the United States shall 
not be construed to extend to any suit, in 
law or equity, commenced or prosecuted 
against one of the United States by citizens 
of another state, or by citizens or subjects 
of any foreign state. " The supreme court 
had construed the judicial power as ex- 
tending to such a suit, and its decision 
was thus overruled. The court itself so 
understood the efiect of the amendment, 
for after its adoption Attorney General 
Lee, in the case of Hollings worth v. Vir- 
ginia, (3 Dall. 378,) submitted this question 
to the court," whether the amendment did 
or did not supersede all suits depending, as 
well as prevent the institution of new 
suits, against anyone of the United States, 
by citizens of another state." Tilghman 
and Rawle argued in the negative, con- 
tending that the jurisdiction of the court 
was unimpaii'ed in I'elation to all suits in- 
stituted previously to the adoption of the 
amendment. But on the succeeding day, 
the court delivered an unanimous opinion 
"that, the amendment being constitution- 
ally adopted, there could not be exercised 
any jurisdiction, in any case, past or fut- 
ure, in which a state was sued by the citi- 
zens of another state, or by citizens or 
subjects of any foreign state. " 

This view of the force and meaning of 
the cimendment is important. It siiows 
that, on this question of the suability of 
the states by individuals, tlie highest au- 
thority of this country was in accord rath- 
er with the minority than with the major- 
ity of the court in the decision of the case 
of Chisholm v. Georgia; and this fact 
lends additional interest to the able opin- 
ion of Mr. Justice luEUEi L on that occa- 
sion. The other justices were more swayed 
by a close observance of the letter of the 



AMENDMENT OE THE EEDERAIi CONSTITUTION. 



constitution, without re{i:ard to former 
experience and usage; and because the let- 
ter said that the judicial power shall ex- 
tend to controversies "between a state and 
citizens of another state; " and "between 
a state and foreign states, citizens or sub- 
jects, " they felt constrained to see in this 
language a powerto enable the individual 
citizens of one state, or of a foreign state, 
to sue another state of the Union in the 
federal courts. Justice Iredell, on the 
contrary, contended that it was not the 
intention to create new and unheard of 
remedies, by subjectingsovereign states to 
actions at the suit of individuals, (which 
he conclusively showed was never done be- 
fore,) but only, by proper legislation, to 
invest the federal covirts with jurisdiction 
to hear and determine controversies and 
cases, be ween the parties designated, 
that were properly susceptible of litigation 
in courts. Uooking back from our present 
stand-x)oint at the decision in Chisholm v. 
Georgia, we do not greatly wonder at the 
effect which it had upon the country. 
Any such power as that of authorizing 
the federal judiciary to entertain suits by 
individuals against the states had been 
expressly disclaimed, and even resented, by 
the great defenders of the constitution 
while it was on its trial before the Amer- 
ican people. As some of their utterances 
are directly pertinent to the question now 
under consideration, we deem it proper to 
quote them. 

The eighty-first number of the Federal- 
ist, written by Hamilton, has the follow- 
ing profound remarks: "It has been sug- 
gested that an assignment of the public 
securities of one state to the citizens of an- 
other would enable them to prosecute that 
state in the federal courts for the amount 
of those securities, a suggestion which the 
followingconsiderations prove to be with- 
out foundation : It is inherent in the nat- 
ure of sovereignty not to be amenable to 
the suit of an individual without its con- 
sent. This is thegeneral sense and the gen- 
eral practice of mankind; and the exemp- 
tion, as one of the attributes of sovereign- 
ty, is now enjoyed by the government of 
every state in the Union. Unless, there- 
fore, there is a surrender of this immunity 
in the plan of the convention, it will re- 
main with the states, and the danger inti- 
mated must be merely ideal. The circum- 
stances which are necessary to produce an 
alienation of state sovereignty were dis- 
cussed in considering the article of taxa- 
tion, and need not be repeated here. A re- 
currence to the principles there established 
will satisfy us that there is no color to 
pretend thatthestate governments would, 
by the adoption of that plan, be divested 
of the privilege of paying their own debts 
In their own way, free from every con- 
straint but that whicli flows» from the 
obligations of good faith. The contracts 
between a natic^nand individuals are only 
binding on the conscience of the sovereign, 
and have no pretension to a compulsive 
force. They confer no right of action inde- 
pendent of the sovereign will. To what 
purpose would it be to authorize suits 
against states for the debts they owe? 
How could recoveries be enforced? It is 
evident that it could not be done without 



waging war against the contracting state ; 
and to ascribe to the federal courts by 
mere, implication, and in destruction of a 
prcyexisting right of the state governments, 
a power which would involve such a con- 
sequence, would be altogether forced and 
unwarrantable. " 

The obnoxious clause to which Hamil- 
ton's argument was directed, and which 
was the ground of the objections which 
he so forcibly met, was that which declared 
that "the judicial power shall extend to all 

* * * controversies between a state and 
citizens of another state, * * * and be- 
tween a state and foreign states, citizens, 
or subjects. " It was argued by the oppo- 
nents of the constitution that this clause 
would authorize jurisdiction to be given 
to the federal courts to entertain suits 
against a state brought by the citizens of 
another state or of a foreign state. Ad- 
hering to the mere letter, it might be so, 
and so, in fact, the supreme court held in 
Chisholm v. Georgia; but looking at the 
subject as Hamilton did, ana as Mr. Justice 
Iredell did, in the light of history and ex- 
perience and the established order of 
things, the views of the latter wereclearly 
right, as the people of the United States in 
their sovereign capacity subsequently de- 
cided. 

But Hamilton was not alone in protest- 
ing against the construction put upon the 
constitution by its opponents. In the Vir- 
ginia convention the same objections were 
raised bj' George Mason and Patrick Hen- 
ry, and were met by Madison and Marshall 
as follows. Madison said: "Its jurisdic- 
tion [thefederal jurisdiction] in controver- 
sies between a state and citizens of anoth- 
er state is much objected to, and perhaps 
without reason. It is not in the power 
of individuals to call any state into court. 
The only operation it can have is that, if 
a state should wish to bring a suit against 
a citizen, it must be brought before the 
federal court. This will give satisfaction 
to indiA'iduais, as it will prevent citizens 
on whom a state may have a claim being- 
dissatisfied with the state courts. * * * 
It appears to me that this [clause] can 
have no operation but this : to give a citi- 
zen a right to be heard in the federal 
courts, and, if a state should condescend 
to be a party, this court may take cogni- 
zance of it. " 3 Elliott, Debates, 533. Mar- 
shall, in answer to the same objection, 
said : " With respect to disputes between a 
state and the citizens of another state, its 
jurisdiction has been decriedwith unusual 
vehemence. Ihope that nogentlemau will 
think that a state will be called at the bar 
of the federal court. * * * It is not ra- 
tional to suppose that the sovereign pow- 
er should be dragged before a court. The 
intent is to enable states to recoverclaims 
of individuals residing in other states. 

* * * But, say they, there will be pai*- 
tiality in it if a state cannot be a defend- 
ant; if an individual cannot proceed toob- 
'tain judgment against a state, though he 
may be sued b^' a state. It is necessary to 
be so, and cannot be avoided. I see a diffi- 
culty in making a state defendant which 
does not prevent its being plaintiff. " Id. 
5.55. 

It seems to us that these views of those 



ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. 



^reat advocates and defenders of the con- 
stitution were most sensible and just, and 
tliey api^ly equally to the pi'esent case as 
to that then under discussion. Tiie letter 
is appealed to now, as it was then, as a 
f?round for sustaining" a suit brought by 
an individual against a state. The reason 
against it is as strong in this case as it 
was in that. It is an attempt to strain 
the constitution and thelawtoa construc- 
tion never imagined or dreamed of. Can 
we suppose that, when the eleventh 
amendment was adopted, it was under- 
stood to be left open for citizens of a state 
to sue their own state in the federal 
courts, while the idea of suits by citizens 
of other states, or of foreign states, was 
indignantly rei)elled? Suppose that con- 
gress, when proposing the eleventh amend- 
ment, had appoided to it a proviso that 
nothing therein contained should prevent 
a state from being sued bj' its own citizens 
in cases arising under the constitution or 
Jaws of the United States, can we imagine 
that it would have been adopted by the 
states? The supposition that it woidd is 
almost an absurdity on its face. 

The truth is that the cognizance of suits 
and actions unknown to the law, and for- 
bidden by the law, was not contemjjla ted 
by the constitution when establishing the 
judicial power of the United States. Some 
things, undoubtedly, were made jtistifiable 
which were not known as such at the 
common law; such, for exami)le, as con- 
troversies between states as to boundary 
lines, and other questions admitting of 
judicial solution. And yet thecaseof Penn 
V. Lord Baltimore, 1 Ves. Sr. 444, shows 
that some of these unusual subjects of liti- 
gation were not unknown to the courts 
even in colonial times; and several cases 
of the same general character arose under 
the articles of confederation, and were 
brought before the tribunal provided for 
that purpose in those articles. 131 U. S. 
App. .50. The establishment of this new 
branch of jurisdiction seeuied to be neces- 
sary from the extinguishment of diplo- 
matic relations between the states. Of 
other controversies between a state and 
another state or its citizens, which, on the 
settled princijjles of public law, are not 
subjects of judicial cognizance, this court 
has often declined to take jurisdii-tion. 
See Wisconsin v. Insurance Co., lL'7 U. S. 
265, 288, 2S9, 8 Sup. Ct. Rep. 1370, and cases 
there cited. 

The suability of a state, without its con- 
sent, was a thing unknown to the law. 
This has been so often laid down and ac- 
knowledged by courts and jurists that it is 
hardly necessary to be formally asserted. 
It was fully shown by an exhaustive ex- 
amination of the old law by Mr. Justice 
luKDKLL in his opinion in Chisholm v. 
Georgia; and it has been conceded in every 
case since, where the question has, in any 
way, been presented, even in the cases 
which have gone furthest in sustaining 
suits against the officers or agents of 
states. Osborn v. Bank,9 Wheat. 7:JS; Da- 
vis V. Grav, 16 Wall, 203; Board, etc. v. 
McComb, 92 U. S. 531; U. S. v. Lee, 106 U. 
S. 196, 1 Sup. Ct. Rep. 240; Poindexter v. 
Greenhow, 109 U. S. 63, 3 Sup. Ct. Rei). S; 
Virginia Coupon Cases, 114 U. S. 369, 5 Sup. 



Ct. Rep. 903-934, 962, 1020. In all these cases 
the effort was to show, and the court held, 
that thesuits were not against the stateor 
the United States, but against the individu- 
als ; conceding that,if they had been against 
either the slate or the United States, they 
could not be maintained. Mr. Webster 
stated the law with precision in his letter 
to Baring Bros. & Co. of October 16, 1839. 
Works, vol. 6, p. 537. "The security for 
state loans, "he said, "is the plighted faith 
of the estate as a political community. It 
rests on the same basis as other contracts 
with established governments, — the same 
basis, for example, as loans made by the 
United States under the authority of con- 
gress ; that is to say, the good faith of the 
government making the l(<an,and its abil- 
ity to fulfil its engagements." In Briscoe 
V. Bank, 11 Pet. 257, 321, Mr. Justice Mc- 
Lean, delivering the opinion of the court, 
said : "What means of enforcing payment 
from the state had the holder of a bill of 
credit? It is said by the counsel for the 
plaintiff that hecould have sued the state. 
But was a state liable to l>e sued? * * * 
No sovereign state is liable to be sued 
without herconsent. Underthearticles of 
confederation, a, state could be sued only 
in cases of boundary. It is believed that 
there is no case where a suit has been 
brought, at any time, on bills of credit 
against a state; and it is certain that no^ 
suit could have been maintained, on this 
ground, prior to the constitution." "It 
may be accepted as a point of dei)arttirfr 
unquestioned, "said Mr. Justice Mili.kh in 
Cunningham v. Railroad Co., 109 U. S. 446, 
451, 3 Sup. Ct. Rep. 292, " that neither a 
state nor the United States can be sued as 
defendant in any court in this country 
without theirconsent, except in the limited 
class of cases in which a state may be 
made a party in the supreme court of the 
United States by virtue of iIk^ origina! ju- 
risdiction conferred on this court bj- the 
constituticni. " 

Undoubtedly a state maybe sued by its 
own consent, as was the case in Curi-an 
V.Arkansas, 15 How. 304, 309, and in Clark 
V. Barnard, 108 U.S. 436, 447,2 Sup.Ct. Rep. 
878. The suit in the former case was prose- 
cuted by virtue of a statelavv which the leg- 
islature passedin conformity to theconsti- 
tution of that state. But this court de- 
cided, in Beers v. Arkansas, 20 How. 527, 
that the state could rejoealthat law at any 
a time; that it was not a contract within 
the te'-ms of the constitution prohibiting: 
the passage of state lawsimi)aii'ing the ob- 
ligation of a contract. In that case the law 
allowing the state to besued was moditied 
pending certain suits against the state on 
its bonds, so as to require the bonds to be 
filed in court, which was objected to as an 
unconstitutional change of the law. Chief 
Justice Ta.mcv, delivering the opinion of 
the court, said : " It is an established prin- 
ciple of jurisprudence in all civilized nations 
that the sovereign cannot be sued in its 
own courts, or in any other, without its 
consent and i)ermission; but it may, if it 
thinks proper, waive this privilege, and 
I)ermit itself to be made a defendant in a 
suit by individuals, or by another state. 
And, as this permission is altogt-ther vol- 
untary on the part of the sovereignty, it 



AMENDMENT OF THE FEDERAL CONSTITUTIOX. 



follows that it may prescribe the terms 
and conditions on which it consents to be 
sued, and the manner in which the suit 
shall be conducted, and may withdraw its 
consent whenever it maj^ suppose that jus- 
tice to the public requires it. * * * The 
prior law was not a contract. It was an 
ordinary act of legislation, prescribing the 
conditions upon which the state consented 
to waive the privilege of sovereignty. It 
contained no stipulation that these regula- 
tions should not be modified afterwards if, 
upon experience, it was found that further 
provisions were necessary to protect the 
public interest; and no such contract can 
be implied from the law, nor can this court 
inquire whether the law operated hardly 
or unjustly upon the parties whose suits 
were then pending. That was a question 
for tlie consideration of the legislature. 
They might have repealed the prior law al- 
together, and put an end to the jurisdiction 
of their courts in suits against the state, 
if they had thought proper to do so, or 
prescribe new conditions upon wliich the 
suits might still be allowed to proceed. In 
exercising this latter power the state vio- 
lated no contract with the parties. " The 
same doctrine w^as held in Railroad Co. v. 
Tennessee, 101 0. S. 387, 339; Railroad Co. 
V. Alabama, Id. 832; and In re Ayers, 123 
U. S. 443, 505, 8 Sup.Ct. Rep. 104. 

But besides the presumption that no 
anomalous and unheard-of proceedings or 
suits were intended to be raised up by the 
constitution, — anomalous and unheard of 
when the constitution was adopted, — an 
additional reason why the jurisdiction 
claimed for the circuit court does not exist 
is the language of the act of congress by 
which its jurisdiction is conferred. The 
words are these: "The circuit courts of 
the United States shall have original cog- 
nizance, concurrent with the courts of the 
several states, of all suits of a civil nature, 
at common law or in equity, * * * aris- 
ing under the constitution or laws of the 
United States, or ti-eaties," etc. "Concur- 
rent with the courts of thesevei-al states." 
Does not this qualification show that con- 
gress, in legislating to carry the constitu- 
tion into effect, did not intend to invest its 
courts with any new and strange jurisdic- 
tions? The state courts have no power to 
entertain suits by individuals against a 
state without its consent. Then how does 
the circuit court, having onlj' concurrent 
jurisdiction, acquire any such power? It 
is true chat the same qualification existed 
in the judiciary act of 1789, which was be- 
fore the court in Chisholm v. Georgia, and 
the majority of the court did not think 
that it was sufficient to limit the jurisdic- 
tion of the circuit court. Justice Irkdeli. 
thought differently. In view of the man- 
ner in which that decision was received by 
the country, the adoption of th^ eleventh 
amendment, the light of history, and the 
reason of the thing, we think w^e are at lib- 
erty to prefer Justice Iredell's views in 
this regard. 

Some reliance is placed by the plaintiff 
upon the observations of Chief Justice 
Marshall in Cohens v. Virginia, 6 Wheat. 
264, 410. The chief justice was there con- 
sidering the power of review exercisable by 
this court over the judgments of a state 



court, wherein it might be necessary to 
make the state itself a defendant in en-or. 
He showed that this power was absolute- 
ly necessary in order to enable the judici- 
ary of the United States to take cogni- 
zance of all cases arising ui^iei" the consti- 
tution and laws of the United States. He 
also showed that making a state a defend- 
ant in error was entirely different fi-om 
suing a state in an original action in pros- 
ecution of a demand against it, and was 
not within the meaning of the eleventh 
amendment ; that the prosecation of a writ 
of error against a state was not the pros- 
ecution of a suit in the sense of that amend- 
ment, which had reference to the i)rosecu- 
tion by suit of claims against a state. 
" Where, "said the chief justice, "a state ob- 
tains a judgment against an individual, and 
the court rendering such judgment over- 
rules a defense set up under the constitution 
<jr laws of the United States, the transfer of 
this recoi-d into the supreme court, for the 
sole purpose of inquiring whether thejudg- 
ment violates the constitution or laws of 
the United States, can, with no propriety, 
we think, be denominated a suit com- 
menced or prosecuted against the state 
whose judgment is so far re-examined. 
Nothing is demanded from the state. No 
claim against it of any description is as- 
serted or prosecuted. The party is n )t to 
be restored to the possession of anything. 
* * * He only asserts the constitution- 
al right to have his defense examined by 
that tribunal whose province it is to con- 
strue the constitution and laws of the Un- 
ion. * * » The point of view in which 
this writ of error, with its citation, has 
been considered uniformly in the courts of 
the Union, has been well illustrated by a 
reference to the courseof this court insults 
instituted by the United States. The uni- 
versally received opinion is that no suit 
can be commenced or prosecuted against 
the United States ; that the judiciary act 
does not authorize such suits. Yet writs 
of error, accompanied with citations, have 
uniformly issued for the removal of judg- 
ments in favor of the United States into 
a superior court. * * * It has never 
been suggested that such writ of error 
was a suit against the United States, 
and therefore not within the jurisdiction 
of the appellate court. " After thus show- 
ing by incontestable argument that a 
writ of error to a judgment recovered by 
a state, in which the state is necessarily 
the defendant in error, is not a suit com- 
menced or prosecuted against a state in 
the sense of the amendment, he added that, 
if the court were mistaken in this, its er- 
ror did not affect that case, because the 
writ of error therein was not prosecuted 
by " a citizen of another state" or " of any 
foreign state," and so was not affected by 
the amendment, but was governed hy the 
general grant of judicial power, as extend- 
ing "to all cases arising under the consti- 
tution or laws of the United States, with- 
out respect to parties. " Page 412. 

It must be conceded that the last obser- 
vation of the chief justice does favor the 
argument of the plaintiff. But the ob- 
servation was unnecessary to the decision, 
1 and in that sense extrajudicial, and, 
I though made by one who seldom used 



ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. 



Avonls without due reflection, ought not 
to oiitweigli the inipt)rtant considera- 
tions referred to which lead to a different 
conclusion. With regard to the question 
then before the court, it may be observed 
that writs of error to judgments in favor 
of the crown, or of the state, had be^en 
known to the law from time immemorial, 
and had never been considered as exceyj- 
ti(jns to the rule that an action does not 
lie against the sovereign. To avoid mis- 
apprehension, it may be proper to add 
that, although the obligaticjns of a state 
rest for their performance upon its honor 
and good faith, and cannot be made the 
subjects of judicial cognizance unless the 
state consents to be sued or comes itself 
into conrt, yet, where property or rights 
are enjoyed under a grant or contract 
made by a state, they cannot wantonly be 
invaded. While the state cannot be com- 
pelled by suit to perform its contracts, any 
attempt on its part to violate projjcrty or 
rights acquired under its contracts liiay 
be judicially resisted, and any law imi»air- 
ing the obligation oi contracts under which 
such property or rights are held is void 
and powerless to affect their enjoyment. 
It is not necessary that we should enter 
upon an examination of the reason or ex- 
pediency of the rule which exempts a sov- 
ereign state from prosecution in a court 
of justice at the suit of individuals. This 
is fully discussed by writers on public law. 
It is enough for us to declare its existence. 



I'he legislative department of a state rep- 
■ esents its polity and its will, and is called 
dpon by the highest demands of natural 
and political law" to preserve justice and 
judgment. and to hold inviolate the public 
obligations. Any departure from this rule, 
except for reasons most cogent, (of which 
the legislature, and not the courts, is the 
judge,) never fails in the end to incur the 
odium of the world, and'to bring lasting 
injury upon the state itself. But to de- 
prive the legislature of the power of judg- 
ing what the honor and safety of the state 
may require, even at the expense of a tem- 
porary failure to discharge the public debts, 
would be attended with greater evils than 
such failure can cause. The judgment of 
the circuit court is affirmed. 

HARLAN, J. I concur with the court in 
holding that a suit directly against a state 
l)y one of its own citizens is not one to 
wliich the judicial power of the United 
States extends, unless the state itself con- 
sents to be sued. Upon this ground alone 
I assent to the judgment. lUit I cannotgive 
mv assent to many things said in the opin- 
ion. The comments made upon the decis- 
ion in Chisholm v. Georgia do not meet 
my ai)proval. They are not necessary to 
the determination of the present case. Be- 
sides, I am of opinion that the decision in 
that case was based upon a sound inter- 
pretation of the constitution as that in- 
struvient then was. 



FEDERAL JURISDICTION. 



9 



UNITED STATES v. STATE OF TEXAS. i 

(12 Sup. Ct. 488, 143 U. S. 621.) 

Supreme Court of the United States. Feb. 29, 
1892. 
In equity. 

Edgar Allan, Special A.sst. Atty. Gen., for 
the United States. A. H. Garland, John 
Hancock, George Clark, H. J. May, and C. 
A. Culberson, for the State of Texas. 

Mr. Justice HARLAN delivered the opin- 
ion oi tlie court. 

This suit was brought by original bill in 
this court pursuant to the act of May 2, 
1S90, providing a temporary government 
for the territory of Oklahoma. The 25th 
section recites the existence of a controver- 
sy between the United States and the state 
of Texas »s to the ownersiiip of what is 
designated on the map of Texas as "Greer 
County," and provides that the act shall 
not be construed to apply to that county 
until the title to the same has been ad- 
judicated and determined to be in the 
United States. In order tliat there might 
be a speed^'' and final judicial determina- 
tion of this controversy the attorney gen- 
eral of the United States was authorized 
and directed to commence and prosecute 
on behalf of the United States a proper 
suit in equity in this court against the 
state of Texas, setting forth' the title of 
the United States to the country lying- 
bet ween the North and South Forks of 
the Red river where the Indian Territory 
and the state of Texas adjoin, east of the 
100th degree of longitude, and claimed by 
the state of Texas as within its boundary. 
26St. pp. 81, 92, c. 1S2, § 2.5. 

The state of Texas appeared and filed a 
demurrer, and also an answer denying 
the material allegations of the bill. The 
ca.se is now before the court only upon 
the demurrer, the princi[)al grounds of 
which are that the question presented is 
political in its nature and character, and 
not susceptible of judicial determination 
by this court in the exercise of its juris- 
diction as conferred by the constitution 
and laws of the United States; that it is 
notcompetent for the general government 
to bring suit against a state of the Union 
in one of its own courts, especially when 
the right to be maintained is mutually 
asserted by the United States and the 
state, namely, the ownership of certain 
designated territory; and that the plain- 
tiff's cause of action, being a suit to re- 
cover real property, is legal, and not eq- 
uitable, and consequently so much of the 
act of May 2. 1890, as authorizes and di- 
rects the prosecution of a suit in equity to 
determine the rights of the United States 
to the territor3' in question is inconstitu 
tional and void. 

The necessity of the preserifc»suit as a 
measureof peace between the general gov- 
ernment and the state of Texas, and the 
nature and importance of t ie questions 
raised by the demurrer, will appear from 
a statement of the principal facts disclosed 
by the bid and amended bill. 



1 Dissenting opinion of Mr. Chief Justice Ful- 
ler omitted. 



By a treaty' between the United States 
and Spain, made February 22, 1819, and 
r.'itified February 19, 1821, it was pro- 
vided : 

"Art. 3. The boundary line between the 
two countries, west of the Mississippi, 
shall begin on the Gulf of Mexico, at the 
mouth of the river Sabine, in the sea, con- 
tinuing north, along the western bank of 
that river, to the thirty-second degree of 
latitude; thence, by a line due north, to 
the degree of latitude where it strikes the 
Rio Roxo of Natchitoches or Red river; 
then following the course of the Rio Roxo, 
westward, to the degree of longitude ICJ 
west from London and 23 from Washing- 
ton ; then, crossing the said Red river, 
and running thence, by a line due north, 
to the river Arkansas; thence, following 
the course of the southern bank of the 
Arkansas, to its source, in latitude 42 
north; and thence, by that parallel of 
latitude, to the South Sea. The whole 
being as laid down in Melish's map of the 
United States, published at Philadelphia, 
improved to the 1st of January, 1818. But, 
if the source of the Arkansas river shall be 
found to fall north or sonth of latitude 42, 
then the line shall be run from the said 
source due south or north, as the case 
may be, till it meets the said parallel of 
latitude 42, and thence, along the said 
parallel, to the South Sea. All the islands 
in the Sabine and the said Red and Ar- 
kansas rivers, throughout the course thus 
described, to belong to the United States; 
but the use of the waters, and the naviga- 
tion of the Sabine to the sea, and of the 
said rivers Roxo and Arkansas, through- 
out the extent of the said boundary, on 
their respective banks, shall be common 
to the respective inhabitants of both na- 
tions. 

"The two high contracting parties agree 
to cede and renounce all their rights, 
claims, and pretensions to the territories 
described by said line; that is to say, the 
United States hereby cede to his Catholic 
majesty, and renounce forever, all their 
rights, claims, and pretensions to the ter- 
ritories lying west and south of the 
above-described line; and. in like manner, 
his Catholic majestj' cedes to the said 
United States all his rights, claims, and 
pretensions to any territories east and 
north of the said line, and for himself, his 
heirs, and successors, renounces all claim 
to the said territories fijrever. " 8 St. pp. 
252, 254, 2.50, art. 3. 

For the purpose of fixing the line with 
precision, and of placing landmarks to 
designate the limits of both nations, it 
was stipulated that each appoint a com- 
missioner and a surveyor, who should 
meet, before the end of one year from the 
ratification of the treaty, at Natchitoches, 
on the Red river, and run and mark the 
line "from the mouth of the Sabine to the 
Red river, and from the Red river to the 
river Arkansas, and to ascertain the 
latitude of the source of the said river 
Arkansas, in conformity to what is above 
agreed upon and stipulated, and the line 
of latitude 42, to the South Sea;" making 
out plans and keeping journals of their 
proceedings, and the result to be consid- 
ered afc> part of the treaty, having the 



10 



FEDERAL JURISDICTIOIN^. 



same force as if it had been inserted there- 
in. Article 4, S St. p. 250. 

At the date of the ratification of this 
treaty tlie country now con.stituting 
Texas belonged to Mexico, part of the 
monarchy of Spain. Subsequently, in 
1824, Mexico became a separate, independ- 
ent power, whv?rel)y the boundary line 
desifiuated in the treaty of ISll) became 
the line between the United States and 
Mexico. 

On the 12th of January, 1828, a treaty 
between the United States and Mexico 
was concluded. aTid subsequently, April 
5, 1S32, was ratified, whereby, as between 
those jjoverninents, the validity of the 
limits defined by the treaty of 1819 was 
confirmed. 8 St. p. 872. 

By a treaty concluded April 25, 1838, be- 
tween the United States and the republic 
of Texas, which was ratified and pro- 
claimed October 12 and 13. 18o8, it was de- 
clared that the treaty of limits made and 
concluded in 1S2S between the United 
States and Mexico "is binding upon the 
republic of Texas;" and in order to prevent 
future disjjutes and collisions in regard to 
the boundary between the two countries, 
as designated by the treaty of 1828, it waH 
stipulated: 

"article I. Each of the contracting par- 
ties shall appoint a commissioner and sur- 
veyor, who shall meet, l>efore tlie termina- 
tion of twelvemonths from the exchange 
of tlie ratification of this convention, at 
New Orleans, and proceed to run and 
mark that portion of the said boundary 
which extends from the mouth of the Sa- 
bine, where that river enters the Gulf of 
Mexico, to the Red river. 'J'hey shall make 
out jjlans and keep journals of their pro- 
ceedings, and the result agreed upon by 
them shall be considered as part of this 
convention, and shall have the same force 
as if it were inserted therein. » * * 

"Art. 2. And it is agreed that, until this 
line is marked out, as is provided for in 
the fru-egoing article, each of the contract- 
ing i)arties shall continue to exercise juris- 
diction in all territor^^ over which its ju- 
risdiction has hitherto been exercised, and 
that tiie remaining portion of the said 
boundary line shall be run and marked at 
such time hereafter as may suit the con- 
venience of both the contracting parties, 
until which time each of the said parties 
shall exerrise, without the interference of 
the other, within the territory of which 
the boundary shall not have been so 
marked and run, jurisdiction to the same 
extent to which it has l)een heretofore 
usually exercised." 8 St. p. 511. 

The treaty of 1838 hnd not been executed 
on the 1st day of March, 1845, when con- 
gress, by joint rescjlution, consented that 
"the territory properly included within, 
and rightfully belonging to, the republic of 
Texas, may be erected into a new state," 
upon certain conditions. 5 St. p. 797. 
Those conditions having been accepted, 
Texas, by a joint resolution of congress, 
passed December 29, 1845, was admitted 
into the Union on an equal footing with 
the original states in all respects what- 
ever. 9 St. p. 108. 

By an act of congress approved Septem- 
ber 9, 1850, certain propositions were made 



on behalf of the United States to the state 
of Texas, to become obligatoiy upon the 
parties when accepted by Texas, if such 
acceptance was given on or l)efore Decem- 
ber 1, 18.50. One of those pi-()positi(jns 
was^ that Texas would agref that its 
boundary on the north should commence 
at the point at which the meridian of 100 
degrees west from Greenwich is intersect- 
ed by the parallel of 86 degrees 80 minutes 
north latitude, and run from that point 
due west to the meridian of 103 degrees 
west from (ireen wich ; thence due south to 
the thirty-second degree of north latitude; 
thence, on the parcillel of32degrees of north 
latitude, to the Rio Bravo del Norte; and 
thence with the channel of said river to 
the Gulf of Mexico,— another, tliat Texas 
cede to the United States all her claim to 
territory exteri(jr to the above limits and 
boundaries. In consideration of said es- 
tablishment of boundaries, cession of 
claim to territory, and relinquishment of 
claims, the United States agreed to pay to 
Texas the sum of $10,000,000 in a stock 
bearing 5 per cent, interest, and redeema- 
ble at the end of 14 years, the interest paj'- 
able half-yearly at the treasury of the 
United States. 9 St. p. 44G, c. 49. 

By an act of assembly apjiroved Novem- 
ber 25, 1850, the above propositions were 
accepted by Texas, and it agreed to be 
bound bj- them according to their true im- 
port. 

During the whole period of nearly 40 
years succeeding the treaty of 1819, no ac- 
tion, except as above indicated, was taken 
to settle the boundary line in question. 
But in the year 18.59 a joint commissi(m on 
the part of the United States and Texas 
commenced the work of running that line, 
but separated without reaching any con- 
clusion. Nevertheless, in 18(50 the commis- 
sioner upon the part of the United States 
completed the work, without the co-oper- 
ation of the commissioner of Texas, and 
reported the result to the general land- 
office in 1861. Acccjrding to the determi- 
nation of the commissioner on the part of 
the United States, and under certain sur- 
veys made fi'om 1857 t(j 18.59, pursuant to 
a contract between two persons named 
Jones and Brown and the commissioner 
of Indian affairs, the true dividing and 
boundary line between t!ie United States 
and the United Mexican States began 
where the 100th meridian touched the 
main Red river aforesaid, running thence 
along the line or eourse of what is now 
known as the "South Uork of the Red 
River," or "River of the Treaty of 1819. " 

After the commissioners of the United 
States and Texas had failed to reach an 
agreement the legislature of Texas, by an 
act approved February 8, i860, declared 
"that all the territory contained in the 
following limits, to-wit; Beginning at 
the confluence of Red river and Prairie 
Dog river; thence running up Red river, 
passing the mouth of South Fork and fol- 
lowing main or North Red river to its in- 
tersection witli the twenty-third degree of 
west longitude; thence due north across 
Salt Fork and Prairie Dog river, and 
thence following that river to the place of 
beginning,— be, and the same is hereby, 
created into a county to be known by the 



JURISDICTION OF SUPREME COURT. 



II 



name and style of the 'County of Greer.'" 
Anf] by acts of its officers, proceeding un- 
der its statutes, Texas assumed and exer- 
cised control and jurisdiction of the terri- 
tory constituting what is called the 
"Countj' of Greer." 

Notwithstanding those assertions of 
control and jurisdiction, Texas, by an act 
approved Ma.v 2, 1882, made provision for 
running and marking the line in question. 
That act provided for the appointment by 
the governor of a suitable person or per- 
sons who, in conjunction with such per- 
son or persons as might be appointed bj' 
or on behalf of the United States for the 
same purpose, should run and mark the 
boundary line between the territories of 
the United States and the state of Texas, 
in order that "the question may be defi- 
nitely settled as to the true location of 
the one hundredth degree of longitude 
west from London, and whether the North 
Fork of Red river, or the Prairie Dog Fork 
of said river, is the true Red river desig- 
nated in the treaty between the United 
States and Spain, made Februarv 22, 1S19. " 
By an act of congress, approved Jan- 
uary 31, 1885, provision was made for the 
appointment of a commission by the presi- 
dent to act with the commission to be ap- 
pointed by the state of Texas in ascer- 
taining and marking the point where the 
100th meridian of longitude crosses Rfd 
river, in accordance with the terms of the 
treaty of 1819; the person or persons so 
appointed to make report of his or their 
action in the premises to the secretary of 
the interior, who should transmit the 
same to congress at its next session after 
the report was made, 23 St. p. 296, c. 47. 

Unaer the lust-mentioned acts a joint 
coni mission was organized, and it assem- 
bled at Galveston, Tex., on February 23, 
1886. Being unai)le to agree as to wheth- 
er the stream now known as the "North 
Fork of the Red River," or that now 
called the "South Fork or Main Red Riv- 
er, " was the river referred to in the treaty 
of 1819, the joint commission adjourned 
sine die with the understanding that each 
commission would make its report to the 
proper authorities and await instructions. 
The commissioners on tlie part of the 
United States reported that "the Prairie 
Dog Town Fork is the true boundary, and 
that the monument should be placed at 
the intersection of the one hundredth merid- 
ian with this stream," while the commis- 
sion on the part of Texas repcjrted tha t 
"the North Fork of Red river, as now 
named and deiinefited on the maps, is the 
Rio Roxo or Red River delineated on Mel- 
ish's maps described in the treaty of Feb- 
ruary 22. 1819, and is the boundary line 
of said treaty to the point where the one 
hundredth degree of west longitude 
crosses the same. " 

The United States claims to ha'S'e juris- 
diction over all the territory acquired by 
the treaty of 1819, containing 1,. 511, 576.17 
acres, between what has been designated 
as the " Prairie Dog Town Fork, or Main 
Red River," and the North Fork of Red 
river, being the extreme portion of the In- 
dian Territory lying west of the North 
Fork of the Red river, and east of the one- 
hundredth meridia:! of west longitude 



from Greenwich, and that its right to said 
territory, su far from having been relin- 
quished, has been continuously asserted 
from the ratification of the treaty of 1819 
to the present time. 

The bill alleges that the state of Texas, 
without right, claims, has taken posses- 
sion of, and endeavors to extend its lasv.s 
and jurisdiction over, the disputed ter- 
ritory, in violation of the treaty rights 
of the United States; that, during the 
year 1887, it gave public notice of its pur- 
pose to survey and place upon the market 
for sale, and otherwise dispose of, that ter- 
ritory ; and that, in consequence of its pro- 
ceeding to eject bona tide settlers from cer- 
tain portions thereof. President Cleveland, 
bj^ proclamation issued December 30, 1S87, 
warned all persons, whether claiming to 
act as officers of the county of Greer or 
otherwise, against selling or disposing of, 
or attempting to sell or dispose of, any 
of said lands, or from exercising or at- 
tempting to exercise any authoiity over 
them, and "against purchasing any i)art 
of said territory from any person or per- 
sons whatever." 25 St. p. 1483. 

The relief asked is a decree determining 
the true line between the United States 
and the state of Texas, and whether the 
land constituting what is called "Greer 
County " is within the boundary and ju- 
risdiction of the United States or of the 
state of Texas. The government pra3'S 
that its rights, as asserted in the bill, be 
established, and that it have such other 
relief as the nature of thecase may require. 

In supi)ort of the contention that the 
ascertainment of the boundary between 
a territory of the United States and one 
of the states of the Union is political in 
its nature and character, and not suscep- 
tible of judicial determination, the defend- 
ant cites Foster v. Neilson, 2 Pet. 2,53, 307, 
309; Clierokee Nation v. Georgia, 5 Pet. 
1, 21; U.S. V. Arredondo, 6 Pet. 691, 711; 
and Garcia v. l^ee, 12 Pet. 511, 517. 

In Foster v. Neilson, which was an ac- 
tion to recover certain la mis in Louisiana, 
the controlling question was as to whom 
the country between the Iberville and the 
Perdido rightfully belonged at the time 
the title of the plaintiff in that case was 
acquired. The United States, the court 
said, had perseveringly insisted that by 
the treaty of St. Ildefonso, made October 
1, 1800, Spain ceded the disputed territorj' 
as part of Louisiana to France, and that 
France, by the treaty of Paris of 1803, 
ceded it to the United States. Spain in- 
sisted that the cession to France compre- 
hended only the territory which at that 
time was denominated " Louisiana. " Aft- 
er examining various articles of the 
tieaty of St. Ildefonso, Chief Justice Mar- 
shall, speMking for the court, said: "In a' 
controversy between two nations con- 
cerning national boundary, it is scarcely 
possible that the courts of either should 
refuse to abide by the measures adopted 
by their own government. There being no 
common tribunal to decide between them, 
each determines for itself on its own 
rights, and if they cannot adjust their dif- 
ferences peaceably the right remains with 
the strongest. The judiciary is not that 
department of the government to which 



12 



FEDERAL JUR1SDICTI0:N". 



the assertion of its interests ajrainst for- 
eign powers is confided ; and its duty, com- 
monly, is to decide upon individual rights, 
according to those principles which the po- 
litical departments of the nation liave es- 
tablished. If the course of the nation has 
been a plain one, its courts would hesitate 
to pronounce it erroneous." Again: "Aft- 
er these acts of sovereign power over the 
teriitory in dispute, asserting the Ameri- 
can construction of tlie treaty' by which 
the government claims it, to maintain the 
opposite construction in its own courts 
would certainly be an anomaly in the his- 
tory and practice of nations. If those de- 
jjartments which are intrusted with the 
foreign intercourse of the nation, which 
assert and maintain its interests against 
foreign powers, have unequivocally as- 
serted its rights of dominion over a coun- 
try of which it is in possession, and which 
itclaims under a treaty; if the legislature 
has acted on the construction thus assert- 
ed, — it is not in its own courts that this con- 
slrnction is to be denied. A (ui«-stlon like 
this, respecting the boundaries of nations, 
is, ais has been truly said, more a i)olittcal 
than a legal question; and in its discus- 
sion the c<nirts of every country must re- 
st)ect the pronounced will of the legisla- 
ture. " 

In U. S. V. Arredondo the court, re- 
ferring to Foster V. Neilson, said: "This 
court did not deem the settlement of 
boundaries a judicial, but a political, ques- 
tion ; that it was not its duty to lead, 
but to follow, the action of the other de- 
partments of the government." The 
same principles were recognized in Chero- 
kee Nation v. Georgia and (iarcia v. Lee. 

These authorities do not control the 
present case. They relate to questions of 
boundary between independent nations, 
and have no application to a question of 
that character arising between the gen- 
eral government and one of the states 
com[)osing the Union, or between two 
states of the Union. By the articles of 
confederation, congress was made "the 
last resort on appeal in all disputes and 
differences" then subsisting or which 
thereafter might arise "between two or 
more states concerning boundary, juris- 
<liction, orany othercause whatever;" the 
authority so conferred to be exercised by 
a special tribunal to be organized in the 
mode prescribed in those articles, and its 
judgment to be final and conclusive. 
Article 9. At the time of the adoption of 
the constitution, there existed, as this 
court said in Rhode Island v. Massa- 
chusetts, 12 Pet. 657, 723, 724, contro- 
vei'sies between 11 states, in resjiect to 
boundaries, which had continued from the 
first settlement of the colonies. The ne- 
cessity for the creation of some tribunal 
for the settlement of these and like con- 
troversies that might arise, under the 
new government to be formed, must, 
therefore, have been perceived by the 
framers of the constitution; and conse- 
quently, among thecontroversies to which 
the judicial power of the United States 
was extended by the constitution, we find 
those between two or more states. And 
that a controversy between two or more 
states, in resjject to boundary, is one to 



which, under the constitution, such judi- 
cial power extends, is no longer an open 
question in this court. The cases of 
Rhode Island v. Massachusetts, 12 Pet. 
6.57; New .Iers»v v. New York, .5 Pet. 284, 
290; Missouri v. Iowa, 7 How. 660; Flori- 
da V. Georgia, 17 How. 47S; Alabama v. 
Georgia, 23 How. 505; Virginia v. West 
Virginia, 11 Wall. 39, 55; Missouri v. 
Kentucky, 11 Wall. 395; Indiana v. Ken- 
tnckv. 136 U. S. 479, 10 Snn. Ct. Rep. 10.51 ; 
and Nebraska v. Iowa, 143 U. S.3.59, 12Sup. 
Ct. Rep. 3;)6, — were all original suits in 
this court for the judicial determination 
of disputed boundary lines between states. 
In New .lersey v. New York, 5 Pet. 284, 
290, Chief Justice Marshall said ; "It has 
then been settled by our predecessors, on 
great deliberation, that this court may 
exercise its original jurisdiction in suits 
against a state, under the authority con- 
ferred by the constitution and existing 
acts of congress." And, in Virginia v. 
West Virginia, it was said by Mr. Justice 
Miller to be the established doctrine of 
this court "that it has jurisdiction of 
questions of boundary between two states 
of this Union, and that this jurisdiction is 
not defeated because, in deciding that 
(luestion, it becomes necessary to iexamine 
into and construe compacts or agree- 
ments between those states, or because 
the decree which the court may render 
affects the territorial limits of the politic- 
al jurisdiction and sovereignty of the 
states which are parties to the proceed- 
ing."' So, in Wisconsin V. Insurance Co., 
127 U. 8. 265, 287, 288, 8 Sup. Ct. Rep. 1370: 
"By the constitution, thei'efore, this court 
has original jurisdiction of suits brought 
by a state against citizens of another 
state, as well as of controversies between 
two states. * * * As to ' controversies 
between two or more states,' the most 
numerous class of which this court has 
entertainefl jurisdiction is that of contro- 
versies between two states as to the 
boundaries of their tei-ritory. such as 
were determined before the Revolution by 
the king, in council, and under the articles 
of confederation (while there was no na- 
tional judiciary) by committees or com- 
missioners appointed by congress." 

In view of these cases, it cannot with 
propriety be said that a question of 
boundary between a territory' of the 
United States and one of the states of the 
Union is of a political nature, and not sus- 
ceptible of judicial determination by a 
court having jurisdiction of such a con- 
troversy. The important question, there- 
fore, is whether this court can, under the 
constitution, take cognizance of an 
original suit brought by the United States 
against a state to determine the boundary 
between one of the territories and such 
state. Texas insists that no such juris- 
diction has been conferred upon this 
court, and that the only mode in which 
the present dispute can be peaceably set- 
tled is by agreement, in some form, be- 
tween the United States and that state. 
Of course, if no such agreement can be 
reached,— and it seems that one is not 
probable,— and if neither party will sur- 
render its claim of autht^rity and jurisdic- 
tion over the disputed territory, the re- 



JUHISDICTION OF SUPREME COURT. 



1'3 



suit, according to the defendant's theory 
of the constitution, must be that the 
United States, in order to effect a settie- 
mentofthis vexed question of boundary, 
must bring its suit in one of the courts 
of Texas, ^that state consenting that its 
courts may be opened for the assertion of 
claims against it by the United States,— 
or that in the end there must be a trial of 
physical strength between the govern- 
ment of the Union and Texas. The first 
alternative Is unwarranted both by the 
letter and spirit of the constitution. Mr. 
.Justice Story has well said: "It scarcely 
seems possible to raise a reasonable doubt 
as to the propriety of giving to the na- 
tional courts jurisdiction of cases In which 
the United States are a party. It would 
be a perfect novelty in the history of na- 
tional jurisprudence, as well as of public 
law, that a sovereign had no authority 
to sue in his own courts. Unless this 
power were given to theUnited States, the 
enforcement of all their riahts, powers, 
contracts, and privileges in theirsovercigu 
cai)acity would be at the mercy of the 
states. Thej' must be enforced, if at all, 
in the state tribunals." Story, Const. § 
1674. The second alternative above men- 
tioned has no place in our constitutional 
system, and cannot be contemplated by 
any patriot except with feelings of deep 
concern. 

The cases in this court show that the 
framers of the constitution did provide by 
that instrument for the judicial determina- 
tion of all cases in law and equity between 
two or more states, including those in- 
volving questions of boundary. Did they 
omit to provide forthe judicial determina- 
tion of controversies arising between the 
United States and one or more of the states 
of the Union? This question is, in effect, 
answered bv U. S. v. North Carolina, 18G 
U. S. 211. 10 Sup. Ct. Rep. 920. That was 
an action of debt brought in this court by 
The United States against the state of 
North Carolina upon certain bonds issued 
by that state. The state appeared, the 
case was determined here upon its merits, 
and judgment was rendered for the state. 
It is true that no question was made as 
to the jurisdiction of tiiis court, and noth- 
ing was therefore said in the opinion up- 
on that subject. But it did not escape the 
attention of the court, and the judgment 
would not have been rendered except up- 
on the theory that this court has original 
jurisdiction of a suit by tliR United States 
against a state. As, however, the ques- 
tion of jurisdiction is vital in this case, 
and is distinctly raised, it is proper to 
consider it upon its merits. 

The constitution extends the judicial 
power of the United States "to all cases, 
in law and equity, arising under this con- 
stitution, the laws of the United States 
and treaties made, or v.'hich shall life made, 
under their authority; to all cases affect 
ing ambas-^adors, other public ministers, 
and consuls; to all cases of admiralty 
and maritime jurisdiction ; to controver- 
sies to which tiie United States shall be a 
party; to controversies between two or 
more states; between a state and citizens 
of another state; between citizens of dif- 
ferent states; between citizens of the same 



state claiming lands under grants of dif- 
ferent states, and between a state or the 
citizens thereof and foreign states, citizens, 
or subjects. In all cases affecting ambas- 
sadors, or other public ministers and con- 
suls, and those in which a state shall be a 
party, the supreme court shall have orig- 
inal jurisdiction. In all the other cases 
before mentioned the supreme court shall 
have appellate jurisdiction, both as to 
law and fact, with such exceptions and 
under such regulations as the congress 
shall make. " Article 3, § 2. "The judicial 
power of the United States shall not be 
construed to extend to any suit in law or 
equity commenced or prosecuted against 
one of the United States by citiisens of an- 
other state, or by citizens or subjects of 
any foreign state." 11th Amend. 

It is apparent upon the face of these 
clauses that in one class of cases the juris- 
diction of the courts of the Union depends 
"on the character of the cause, whoever 
fuay be the parties," and in the other, on 
the character of the parties, whatever 
mHy be the subject of controversy. 
Cohens v. Virginia, (i Wheat. 264, oT'^, o9o. 
The present suit falls in each class; for it 
is;, plainly, one arising under the constitu- 
tion, laws, and treaties of the United 
States, and also one in which the United 
States is a party. It is therefore one to 
which, by the express words of the consti- 
tution, tile judicial power of the United 
States extends. That a circuit court of 
the United States has not jurisdiction, un- 
der existing statutes, of a suit by the 
United States against a state, is clear; 
for by the Revised Statutes it is declared 
—as was done by the judiciary act of 1789 
— that "the supreme court shall have ex- 
clusive jurisdiction of all controversies of 
a civil nature where a state is a party, ex- 
cept be ween a state and its citizens, or be- 
tween a state and citizens of other states, 
or aliens, in which latter casesitshall have 
original, but not exclusive, jurisdiction. " 
Rev. St. § fiS7; Act Sept. 24, 1789, c. 20, § 13; 
1 St. p. SO. Su(th exclusive jurisdiction 
was given to this court because it best 
comported with the dignity of a state 
that a case in which it was a party should 
be determined in the highest, rather than 
in a subordinate, judicial tribunal of the 
nation. Why, then, may not this court 
take original cognizance of the present 
suit, involving a question of boundary be- 
tween a territory of the United States and 
a state? 

The words in the constitution, "in all 
cases * * * in which a state shall be 
party, the supreme court shall have orig- 
inal jurisdiction, " necessarily refer to all 
cases mentioned in the preceding clause in 
which a state may be made of right a 
party defendant, or in which a state may 
of right be a party plaintiff. It is admit- 
ted that these words do not refer to suits 
brought against a state by its own citi- 
zens or by citizens of other states, or by 
citizens or subjects of foreign states, even 
where such suits arise under the constitu- 
tion, laws, and treaties of the United 
States, because the judicial power of the 
United States does not extend to suits of 
individuals against states. Hans v. 
Louisiana, 134 U. S. 1, 10 Sup. Ct. Rep. 504^ 



14 



FEDERAL JURISDICTION. 



^nd authorities tliere cited; North Caro- 
lina V. Temple. 134 U. S. 22, 30, 10 Sup. Ct. 
Rep. .509. It is, however, said that the 
words last quoted ref^r only to suits in 
which a state is a part3', and in which, 
also, the opposite party is another state 
of the Tnion or a foreign state. This can- 
not be correct, foi- it must be conceded 
that a state can brinj? an orif^inal suit in 
this court a}j;aiiist a citizen of another 
state. Wisconsin v. Pelican Ins. Co., 127 
U. S. 2()5, 2.S7, 8 Sup. Ct. Rep. L370. Besides, 
unless a state is exempt altojrether from 
suit by the United States, we do not per- 
ceive upon what sound rule of construction 
suits brou}?ht by the United States in this 
court — especially if they be suits, the cor- 
rect decision of which depends upon the 
constitution, laws, or treaties of the United 
States — are to beexcludcd from itsorijiinal 
jurisdiction as defined in the constitution. 
That instrument extends thejndicial power 
of the United States "to all cases," in law 
and ecpiity, arising under the constitution, 
laws, and treaties of the United States, 
and to controversies in which the United 
States shall be a party, and confers upon 
this court orijrinal jurisdiction "in all 
cases" "in which a state shall be party;" 
that is, in all cases mentioned in the pre- 
cedinsi' clause in which a state may of 
rif^ht be made a party defendant, as well 
as in all cases in which a state may of right 
institute a suit in a court of the United 
States. ITie present case is of the former 
/;lass. We cannot assume that the fram- 
ers of the constitution, while extending 
the judicial power of the United States to 
controversies between two or more states 
of the Union, and between a state of the 
Union and foreign states, intended to ex- 
empt a state altogether from suit by the 
general government. The^' could not 
have overlooked the possibility that con- 
troversies capable of judicial solution 
might arise between the United States and 
some of the states, and that the perma- 
nence of the Union might be endangered if 
to some tribunal was not intrusted the 
power to determine them according to the 
recognized principles of law. And to what 
tribunal could a trust so momentous be 
more appropriately conunitted than to 
that which the peopleof the United States, 
in order to form a more jierfect Union, es- 
tablish justice, and insure domestic tran- 
quillity, have constituted with authority 
to speak for all the people and all the 
states upon questions before it to which 
the ju Jicial power of the nation extends? 
It would be difficult to suggest any rea- 
son why this court should have jurisdic- 
tion to determine questions of boundary 
between two or more states, but not juris- 
diction of controversies of like character 
between the United States and a state. 

Mr. Justice Buadi.ey, speaking for the 
ccnirt Ml Hans v. Louisiana, 1:^4 U. S. 1, 
l;i l.">, 10 Sup. ct. Rep. 504, referred to 
what had been said by certain statesmen 
at the time the constitution was under 
submission to the people, and said : 

"The letter is appealed to now, as it 
was then, as a ground for sustaining a 
suit brought by an individual iigainst a 
state, * * * The truth is that the cog- 
nizance of suits and actions unknown to 



the law, and forbidden by the law, was 
not contemplated by the constitution 
when establishing the judicial power of 
the United States. Some things, undoubt- 
edl3% were made justiciable which were not 
known as such at the common law ; such, 
for example, as controversies between 
states as to boundary lines, and other 
(juestions admitting of judicial solution. 
And yet the «'ase of Penn v. Lord Balti- 
more, 1 Ves. Sr. 444, shows that some of 
these unusual subjects of litigation were 
not unknown to the courts even in colo- 
nial times; and sevei-al cases of the same 
general character arose under the ariicles 
of confederation, and were brought before 
the tribunal provided for that purt)ose in 
those articles. 131 U. S. Append. 50. The 
establishment of this new branch of juris- 
diction seemed to be necessary from the 
extinguishment of diplouiatic relations 
between the states." That case, and 
others in this court relating to the sua- 
bility of states, proceeded upon the broad 
ground that "it is inherent in the nature 
of sovereignty not to be amenable to 
the suit of an individual without its con- 
sent. " 

The question as to the suability of one 
government by another government rests 
upon wholly different grounds. Texas is 
not called to the bar of this court at the 
suit of an individual, but at the suit of 
the government established for the com- 
mon and et^ual benefit of the people of 
all the states. The submission to judicial 
solution of controversies arisitig between 
these two governments, "each sovereign, 
with respect to the objects committed to 
it, and neither sovereign with respect to 
the objects committed to the other," ( Mc- 
Culloch V. State of Maryland, 4 Wheat. 
31«, 400, 410,) but both subject to the su- 
preme law of the land, does no violence 
to the inherent nature of sovereis'ity. 
The states of the Union have agreed, in 
the constitution, that the judicial power of 
the United States shall extend to all cases 
arising under the constitution, laws, and 
treaties of the United States, without 
regard to the character of the parties, 
(excluding, of course, suits against a 
state by its own citizens or by citizens 
of other states, or by citizens or sub- 
jects of foreign states,) and equally to 
controversies to which the United States 
shall be a party, without regard to the 
subject of such controversies, and that 
this court may exercise original jurisdic- 
tion in all such cases "in wliich a state 
shall be party, " without excluding those 
in which tiie United States may be the op- 
posite party. The exercise, therefore, by 
this court, of such original jurisdiction in 
a suit brought by one state against an- 
other to determine the boundary line be- 
tween them, or in a suit brought by the 
United States against a state to (leter- 
mine the boundary between a territory' of 
the United States and that state, so far 
frt)m infringing in either case upon the 
sovereignty, is with the consent of the 
state sued. Such consent was given by 
Texas when admitted into the Union upon 
an equal footing in all respects with the 
other states. 

We are of opinion that this court has 



JURISDICTION OF SUPREME COURT. 



V 



jurisdiction to determine the dispnted 
question of boundary between the United 
States and Texas, 

It is contended that, even if this court 
has jurisdiction, the dispute as to bound- 
ar3' must be determined in an action at 
law, and that the act of conjjress requir- 
ing the institution of this suit in equity is 
unconstitutional and void, as, in effect, de- 
claring that legal rights shall be tried and 
determined as if they were equitable 
rights. This is not a new question in this 
court. It was suggested in argument, 
though not decided, in Fowler v Lind- 
sey, 3 Uall. 411, 413. Mr. Justice nVashixg- 
Tox, in that case, said : "I will not say 
that a state could sue at law for puch an 
incorporeal right as that of sovereignty 
and jurisdiction; but, even if a court of 
law would not afford a remeay, I can see 
no reason why a remedy should not be 
obtained in a court of equity. The state 
of New York might, I think, file a bill 
against the state of Connecticut, praying 
to be quieted as to the boundaries of the 
disputed territory ; and this court, in order 
to effectuate justice, might appoint com- 
missioners to ascertain and report those 
boundaries." But the question arose 
directly- in Riiode Island v. Massaeiiusetts, 
12 Pet. 657, 734, which was a suit in equity 
in this court involving the boundary line 
between two states. The court said : " No 
court acts differently in deciding on 
boundary between states than on lines 
between separate tracts of land. If there 
is uncertainty where the line is, — if there 
is a confusion of boundaries by the nat- 
ure of interlocking grants, the oblitera- 
tion of marks, the intermixing of posses- 
sion under different proprietors, the ef- 
fects of accident, fraud, or time, or other 
kindred causes, — it is a case appropriate 
to equity. An issue at law is directed, a 
commission of boundary" awarded ; or, if 
the court are satisfied without either, 
they decree what and where the bound- 
ary of a farm, a manor, province, or state 
is and siiall be." When that case was be- 
fore tiie court at a subsequent term. Chief 
Justice Tanky, after stating that the 
case was of peculiar character, involving 
a question of boundary betvveen two 
sovereign states, litigated in a court of 
justice, and that there were no precedents 
as to forms and modes of proceedings, 



said: "The subject was, however, fuUj- 
considered at January term, 183S, when a 
motion was made by the defendant to dis- 
miss this bill. Upon that occasion the 
court determined to frame their proceed- 
ings according to those which had been 
adopted in the English courts in cases 
most analogous to this, where the bound- 
aries of great political bodies had been 
brought into question ; and, acting upon 
this principle, it was then decided that 
the rules and practice of the court of 
chancery should govern In conducting 
this suit to a final issue. The reasoning 
upon which that decision was founded is 
fully stated in the opinion then delivered; 
and, upon re-examining the subject, we 
are quite satisfied as to the correctness of 
this decision. " 14 Pet. 210, 256. The 
above cases (New Jersey v. New York, 
Missouri v. Iowa, Florida v. Georgia, 
Alabama v. Georgia, Virginia v. West 
Virginia, Missouri v. Kentucky, Indiana 
V, Kentucky, and Nebraska v. Iowa) 
were all original suits in equity in this 
court, involving the boundary of states. 
In view of these precedents, it is scarcely 
necessary' for the court to examine this 
question anew. Of course, if a suit in 
e(]uity is appropriate for deteroiining the 
boundary between two states, there can 
be no objection to the present suit as 
being in equity and not at law. It is not 
a suit simply to determine the legal title 
to, and the ownership of, the lands con- 
stituting Greer county. It involves the 
larger question of governmental author- 
ity and jurisdiction over that territory. 
The United States, in effect, asks the 
siiecilic execution of the terms of the 
treaty of 1819, to the end that the dis- 
order and public mischiefs that will ensue 
from a continuance of the present condi- 
tion of things may be prevented. The 
agreement, embodied in the treaty, to fix 
the lines with precision, and to place 
landmarks to designate the limits of the 
two contracting nations, could not well 
be enforced bj' an action at law. The bill 
and amended bill make a case for the in- 
terposition of a court of equity. 
Demurrer overruled. 

Mr. Chief Justice FULLER and Mr. Jus- 
tice LAMAR dissented. 



16 



FEDERAL JURISDICTION". 



CUNNINGHAM, Sheriff, v. NEAGLE.i 

(10 Sup. Ct. 658, 135 U. S. 1.) 

Supreme Court of the United States. April 14, 
1890. 

G. A. Johnson, Atty. Gen. Cal., S. Shel- 
labari^er, J. M. Wilson, and Z. Monttxomery, 
for appellant. W. H. H. Miller, Atty. Gen., 
Jos. H. Cboate, and Jus. C. Carter, for ap- 
pellee. 

MILLER, J. This is an appeal by Ciin- 
niiijj,nani, sheriff of the county of San Joa- 
quin, in the state of California, from a 
jiidj^meut of the circuit court of theUnited 
States for the northern district of Califor- 
nia, discharging David Neagle from the 
custody of said sheriff, who held him a 
prisoner on a charge of murder. On the 
16th day of August, 1880, there was pre- 
sented to Judge Sawyer, the circuit judge 
of the United States for the ninth circuit, 
embracing the northern district of Califor- 
nia, a petition signed, "David Neagle, 
Deputy United States Marshal," by A. L. 
Farish on his behalf. This petition repre- 
sented that the said Farislj was a deputy- 
marshal duly appointed for the northern 
district of California by J.C. Franks, who 
was the marshal of that district. It fur- 
ther alleged that David Neaglewas,at the 
time of the occurrences recited in the peti- 
tion, and at the time of filing it, a duly-ap- 
pointed and acting deputy United States 
maishal for the same district. It then 
proceeded to state that said Neagle was 
imprisoned, confined, and restrained of his 
liberty in the county jail in San Joaquin 
county, in the state of California, by 
Thomas Cunningham, sheiMff of said coun- 
ty', upon a charge of murder, under a war- 
rant of arrest, a copy of which was an- 
nexed to the petition. The warrant Avas 
as follows : 

"In the justice's court of Stockton town- 
ship. State of California, county of San 
Joaquin — ss. : The people of the state of 
California to any sheriff, constable, mar- 
shal, or policeman of said state, or of the 
county of San Joaquin: Information on 
oath having been this day laid before me 
by Sarah A. Terry that the crime of mur- 
der, a felony, has been committed within 
said county of San Joaquin on the 14th 
day of August, A. D. 1SS9, in this, that one 
David S. Terry, a human being then and 
there being, was willfully, unlawfully, fe- 
loniously, and with malice aforethought, 
shot, killed, and murdered, and accusing 
Stephen J. Field and David Neagle thereof, 
you ai'e therefore commanded forthwith 
to arrest the above-named Stephen J. Field 
and David Neagle, and bring them before 
me. at my office in the city of Stockton, or, 
in case of my absence or inability to act, 
before the nearest and most accessible 
magistrate in thecounty. Dated at Stock- 
ton this 14th day of August, A. D. 1889. 
H. V. J. SwAix, Justice of the Peace. 

"The defendant, David Neagle, having 
been brought befoi'e me on this warrant, 
is committed for examination to the sher- 
iff of San Joaquin county, California. 



1 Dissentiuj 
omitted. 



opinion of Mr. Justice Lamar 



Dated August 15, 1889. H. V. J. Swaix, 
Justice of the Peace. " 

The petition then recites the circum- 
stances of a rencounter between said Neagle 
and David S. Terry, in which the latter 
was instantly killed by two shots from a 
revolver in the hands of the former. The 
circumstances of this encounter,- and of 
what led to it, will be considered w^th 
more particularity hereafter. The main 
allegation of this petition is that Neagle, 
as United States deputy-marshal, acting 
under the orders of Marshal Franks, and 
in pursuance of instructions from the at- 
torney general of the United States, had, 
in consequence of an antici])ated attempt 
at violence on the part of Terry against 
the Honorable Stephen J. Field, a justice 
of the supreme court of the United States, 
been in attendance upon said justice, and 
was sitting by his side at a breakfast table 
when a murderous assault was made by 
Terry on Judge Field, and in defense of 
the life of the judge the homicide was com- 
mitted for which Neagle was held by Cun- 
ningham. The allegation is very distinct 
that Justice Fieed was engaged in the dis- 
charge of his duties as circuit justice of the 
United States for that circuit, having held 
court at Los Angeles, one of the places at 
which the court is by law held, and, hav- 
ing left that court, was on his vA-ay to San 
Francisco for the purpose of holding the 
circuit court at that place. The allegation 
is also very full that Neagle Avas directed 
by Marshal Franks to accompany him for 
the purpose of protecting him, and that 
these orders of Franks Avere given in an- 
ticipation of the assault which actually 
occurred. It is also stated, in more gen 
eral terms, that Marshal Neagle, in killing 
Terry under the circumstances, was in the 
discharge of his duty as an officer of the 
United States, and Avas not, therefore, 
guilty of a murder, and that his imprison- 
ment under the Avarrant held by Sheriff 
Cunningham is in violation of the laAvs 
and constitution of the United States, and 
that he is in custody for an act done in 
pursuance of the laws of theUnited States. 
This petition beingsworn toby Farish and 
I)resented to Judge Saavyer, he made the 
following order : " Let a AA-rit of liubens cor- 
pus issue in pursuance of the prayer of the 
within petition, returnable before the Unit- 
ed States circuit court for the northern 
district of California. Saavyek, Circuit 
Judge. " The writ vA-as accordingly issued 
and deliA^ered to Cunningham, Avho made 
the following return : "County of San Joa- 
quin, State of California. Sheriffs Office. 
To the honorable circuit court of the 
United States for the Northern District of 
California: I hereby certify and return 
that before the coming to me of the an- 
nexed writ of habeas corpus the said David 
Neagle was committed to my custody, and 
is detained by me by virtue of a warrant 
issued out of the justice's court of Stock- 
ton township, state of California, county 
of San Joaquin, and by the indorsement 
made upon said warrant. Copy of said 
Avarrant and indorsement is annexed here- 
to, and made a part of this return. Never- 
theless, I have the body of the said David 
Neagle before thehonorable court, as I am 
in the said writ commanded. August 17, 



POWERS AND PROCEDURE OF FEDERAL COURTS. 



17 



1889. Thos. Cunningham, Sheriff San Joa- 
quin County, California. " Various plead- 
ings and amended pleadings were made, 
which do not tend much to the elucidation 
of the matter before us. Cunningham filed 
a demurrer to the petition for the writ of 
habeas corpus; and Neagle filed a traverse 
to the return of the sheriff, which was ac- 
companied by exhibits, the substance of 
which will be hereafter considered, when 
the case comes to be examined upon its 
facts. 

The hearing in the circuit court was had 
before Circuit Judge Sawyer and District 
Judge Sabin. The sheriff, Cunningham, 
was represented by G. A. Johnson, attor- 
ney general of the state of California, and 
othercounsel. A large body of testimony, 
documentary and otherwise, was submit- 
ted to the court, on which, after a full con- 
sideration of the subject, th6 court made 
the following order: "In the matter of 
David Neagle. On habeas corpus. In the 
above-entitled matter, the court, having 
heard the testimonj' introduced on behalf 
of the petitioner, none having been offered 
for the respondent, and also the argu- 
ments of the counsel for petitioner and re- 
spondent, and it appearing to the court 
that the allegations of the petitioner in his 
amended answer or traverse to the return 
of the sheriff of San Joaquin county, re- 
spondent herein, are true, and that the pris- 
oner is in custody for an act done in pur- 
suance of a law of the United States, and 
in custody in violation of the constitution 
and laws of the United States, it is there- 
fore ordered that petitioner be, and he is 
hereby, discharged from custody." From 
that order an appeal was allowed, which 
brings thecase to this court, acccompanied 
by a voluminous record of all the matters 
which were before the court on the hear- 
ing. 

If it be true, as stated in this order of 
thecourt discharging theprisoner, that he 
was held "in custody for an act done in 
pursuance of a law of the United States, 
and in ciistody in violation of the consti- 
tution and laws of the United States," 
there does not seem to be any doubt that, 
under the statute on that subject, he was 
properly discharged by the circuit court. 
Section 753 of the Revised Statutes reads 
as follows: "The writ of habeas corpus^ 
shall in no case extend to a prisoner in jail, 
unless where he is in custody under or by 
color of theauthority of the United States, 
or is committed for trial before some court 
thereof ; or is in custody for an act done 
or omitted in pursuance of a law of the 
United States, or of an order, process, or 
decree of a court or judge thereof; or is in 
custody in violation of the constitution, 
or of a law or treaty of the United States ; 
or, being a subject or citizen of a foreign 
state, and domiciled therein, is in custody 
for an act done or omitted under- any al- 
leged right, title, authority, privilege, pro- 
tection, or exemption claimed under the 
commission, or order, or sanction of any 
foreign state, or under color thereof, the 
validity and effect whereof depend upon 

2 Rev. St. U. S. §§ 7.51. 7.52. give power to the 
supreme court, the circuit and district courts, 
and the several justices and judges of said 
courts to issue writs of habeas corijus. 

SMITH, CONST. LAW— 2 



the law of nations; or unless it is necessa- 
ry to bring the prisoner into court to tes- 
tify. " And section 761 declares that when, 
by the writ of habeas corpus, the peti- 
tioner is brought up for a hearing, the 
"court or justice or judge shall proceed in 
a summary way to determine the facts of 
the case, by hearing the testimony and ar- 
guments, and thereupon to dispose of the 
party as law and justice require. " This, of 
course, means that if he is held in custody 
in violation of the constitution or a law of 
the United States, or for an act done or 
omitted in pursuance of a law of the 
United States, he must be discharged. 

By the law, as it existed at the time of 
the enactment of the Revised Statutes, an 
appeal could be taken to the circuit court 
from any court of justice or judge inferior 
to the circuit court in a certain class of ha- 
beas corpus cases. But there was no ap- 
peal to the supreme court in any case ex- 
cept where the prisoner was the subject or 
citizen of a foreign state, and was commit- 
ted or confined under the authority or law 
of the United States, or of any state, on 
account of any act done or omitted to be 
done under the commission or authority of 
a foreign state, the validity of which de- 
pended upon the law of nations. But aft- 
erwards, by the act of congress of March 
3, 1885, (23 St. 437,) this was extended by 
amendment as follows: "That section 
seven hundred and sixty-four of the Revised 
Statutes be amended so that the same 
shall read as follows: 'From the final de- 
cision of such circuit court an appeal may 
be taken to the supreme court in the ca.ses 
described in the preceding section.' " Tiie 
preceding section here referred to is section 
763 3 and is the one on which the prisoner 
relies for his discharge from custody in this 
case. It will be observed that in both the 
provisions of the Revised Statutes and of 
this latter act of congress the mode of re- 
view, whether by the circuit court of the 
judgment of an inferior court or justice or 
judge, or by this court of the judgment of 
a circuit court, the word "appeal," and 
not "writ of error," is used; and, as con- 
gress has alv^^ays used these words with a 
clear understanding of what is meant by 
them, namely, that by a writ of error on- 
ly questions of law are brought up for re- 
view, as in actions at common law, wiiile 
by an appeal, except when specially pro- 
vided otherwise, the entire case, on both 
law and facts, is to be reconsidered, there 
seems to be little doubt that, so far as it is 
essential to a proper decision of this case, 
the appeal requires us to examine into the 
evidence brought to sustain or defeat the 
right of the petitioner to his discharge. 

The history of the incidents which led to 
the tragic event of the killing of Terry by 
the prisoner, Neagle, had its origin in a 
suit brought by William Sharon, of Ne- 
vada, in the circuit court of the United 
States for the districtof California, against 
Sarah Althea Hill, alleged to be a citizen 
of California, for the purpose of obtaining 
a decree adjudging a certain instruuient 

3 Section (63 provides, among other cases, 
for the issiiing of writs of habeas corpus by the 
circuit courts on petition of persons alleged to be 
restrained of their liberty in violation of the 
constitution or laws of the United States. 



J8 



FEDERAL JURISDICTION. 



in writiiifi' possessed and exhibited by her, 
purporting to be a declai'ation of marriage 
between tlieni under the Code of California, 
to be a forgery, and to have it set aside 
and annulled. This suit, which was com- 
menced October 3, 1.SS3, was finally heard 
before Judge Sawyer, the circuit judge for 
that circuit, and Judge Deady, United 
States district judge for Oregon, who had 
been duly appointed to assist in holding 
the circuit court for the district of Califor- 
nia. The hearing was on September 29, 
Issf). and on the 15th of January, ISSG, a 
deci-ee was rendered granting the prayer 
of the bill. In that decree it was declared 
that the instrument purporting to be a 
declaration of mai'riage, set out and de- 
scribed in the bill of complaint, "was not 
signed or executed at any time by William 
Sharon, the C(jmi)lainant ; that it is not 
genuine; that it is false, counterfeited, 
fabricated, forged, and fraudulent, and, as 
such, is utterly null and void. And it is 
further ordered and decreed that the re- 
spondent, Sarah Althea Hill, deliver up and 
dei)osit Avith ihe clerk of the court said in- 
strument, to be indorsed ' Canceled,' and 
that the clerk write across it, 'Canceled,' 
and sign his name and affix his seal there- 
to. " The i-endition of this decree was ac- 
companied by two opinions; the principal 
one being written by Judge Deady, and a 
concurring one by Judge Sawyer. They 
were very full in their statement of the 
fraud and forgei-y practiced by IMiss Hill, 
and stated that it was also accompanied 
by jterjury; and, inasmuch as Mr. Sharon 
had died l)etween the hearing of the argu- 
ment of tlie case, on the 29th of September, 
1(SS.~), and tlie time of rendering this decis- 
ion, January 15, ]8S(5, an order was made 
setting forth that fact, and declaring that 
the decree was entered as of the date of the 
hearing, ntiiic jtro tunc. 

Nothing was done under this decree. 
The defendant, Sarah Althea Hill, did not 
deliver up the instrunient to tlie clerk to 
be canceled, but she continued to insist 
upon its use in the state court. Under 
these circumstances, Frederick W.Sharon, 
as the executor of the will of his father, 
William Sharon, filed in thecircuit court for 
the northern district of California, on 
Marcli 12, 1S.SS, a bill of revivor, stating 
the circumstances of the decree, the death 
of his father, and that the decree had not 
been performed; alleging, also, the inter- 
marriage of Miss Hill witli David S.Terry, 
of the city of Stockton, in California, and 
making the said Terry and wife parties to 
tliis bill of revivor. The defendants both 
demurred and answered, resisting the 
prayer of the i)laintiff, and denying that 
the petitioner was entitled to any relief. 
This case was argued in the circuit court 
before Field, cii-cviit justice. Sawyer, cir- 
cuit judge, andSABiN, district judge. While 
the matter was held under advisement. 
Judge Sawyer, on returning from Los 
Angeles, in the southern district of Cali- 
fornia, where he had been holding court, 
found himself on the train as it left Fres- 
no, which is nndei-stood to have been the 
residence of Teji-y and wife, in a car in 
which he notic(>d that Mr. and Mrs. Terry 
were in a section behind him, on the same 
side. On this trip from Fresno to San 
Francisco, Mrs. Terry grossly insulted 



Judge Sawyer, and had her husband 
change seats so as to sit directly in front 
of the judge, while she passed him with in- 
solent remarks, and pulled his hair with a 
vicious jerk, and then, in an excited man- 
ner, taking her .seat by her husband's side, 
said: "1 will give him a taste of what he 
will get by and by. I^et him render this 
decision if he dares," — the decision being 
the one already mentioned, then under ad- 
visement. Terry then made some remark 
about too many witnesses being in the 
car, adding that "the best thing to do with 
him would be to take him out into the 
bay, and drown him." These incidents 
were witnessed by two gentlemen who 
knew all the parties, and whose testimony 
is found in the record before us. This was 
August 14,1888. Onthe:jdof September 
the court rendered its decision granting 
the prayer of the bill of revivor in the 
name of Frederick W. Sharon and against 
Sarah Althea Terry and her husband. Da- 
vid S. Terry The opinion was delivered 
by Mr. Justice P'ield, and dui-ing its de- 
livery a scene of great violence occurred in 
the court-room. It appears that shortly 
beforf' the court opened on that day, both 
the defendants in the case came into the 
court-ro(un and took seats within the bar 
at the table next the clerk's desk, and al- 
most immediately in front of the judges. 
Besides Mr. Justice Fieed, there were 
present on the bench Judge Sawyer and 
Judge Sarin, of the district court of the 
United States for the district of Nevada. 
The defendants had denied thejurisdiction 
of the court originally to render the de- 
cree sought to be revived, and the opinion 
of the court necessarily discussed this 
question, without reaching the merits of 
the controversy. When allusion was made 
to this question, Mrs. Terry arose from 
her seat, and, addressing the justice who 
was delivering the 0])inion, asked, in an 
excited manner, whether he was going to 
order her to give up the niarriagecontract 
to be canceled. Mr. Justice Field said: 
"Be seated, madam." She repeated the 
question, and was again told to be seat- 
ed. She then said, in a very excited and 
violent manner, that Justice Field had 
been bought, and wanted to know the 
price he had sold himself for; that he had 
got Newland's money for it, and every- 
body knew that he had got it, or words 
to that effect. Mr. Justice Field then di- 
rected the marshal to remove her from 
the court-room. She asserted that she 
would not go from the room, and that no 
one could take her from it. Marshal 
Franks proceeded to carry out the order 
of the court by attempting to compel her 
to leave, when Terry, her husband, arose 
from his scat under great excitement, ex- 
claiming that no man living should touch 
his wife, and struck the marshal a blow 
in his face so violent as to knock out a 
tooth. He then unbuttoned his coat, 
thrust his hand under his vest, apparently 
for the purpose of drawing a bowie-knife, 
when he was seized by persons present, 
and forced down on his back. In the 
meantime Mrs. Terry was removed from 
the court-room by the marshal, and Terry 
was allowed to rise, and was accom- 
panied by officers to the door leading to 
the marshal's office. As he was about 



POWERS AND PROCEDURE OF FEDERAL COURTS. 



19 



leaving the room, or immediately after 
being out of it, he succeeded in drawing a 
bowie-knife, when his arms were seized by 
a, deputy-marshal and others present to 
prevent him from using it; and they were 
able to wrench it from him only after a 
severe struggle. The most prominent per- 
son engaged in wresting the knife from 
Terry was Neagle, the prisoner now in 
<;ourt. For this conduct both Terry and 
his wife were sentenced by the court to 
imprisonment for contempt, — Mi-s. Terry 
for one month, and Terry for six months ; 
and these sentences were immediately car- 
ried into effect. Both the judgment of the 
court on the petition for the revival of the 
decree in the case of Sharon against Hill, 
and the judgment of the circuit court im- 
prisoning Terry and wife for contempt, 
have been brought to this court for re- 
view; and in both cases the judgments 
have been affirmed. The report of the 
cases may be found in Ex parte Terry, 128 
U. S. 289, 9 Sup. Ct. Rep. 77, and Terrv v. 
Sharon, LSI U. S. 40, 9 Sup. Ct. Rep. 705. 
Terry and Mrs. Terry were sepai-ately in- 
dicted by the grand jury of the circuit 
■court of the United States, during the 
same term, for their part in these transac- 
tions; and the cases were pending in said 
court at the time of Terr3''s death. It also 
appears that Mrs. Terry, during her part 
of this altercation in the court room, was 
making efforts to open a small satchel 
which she had with her, but through her 
excitement she failed. This satchel, which 
was taken from her, was found to have in 
it a revolving pistol. 

From that time until his death the de- 
nunciations by Terry and his wife of Mr. 
Justice Field were open, frequent, and of 
the most vindictive and malevolent char- 
acter. While being transported from San 
Francisco to Alameda, where they were 
imx-)risoned, Mrs. Terry repeated a number 
of times that she would kill both Judge 
Field and Judge Sawyer. Terry, who 
was present, said nothing to restrain her, 
but added that he was not through with 
Judge Field yet; and, while in jail at Al- 
ameda, Terry said that after he got out of 
jail he would horsewhip Judge Field, and 
that he did not believe he would ever re- 
turn to California, but this earth was not 
large enough to keep him from finding- 
Judge Field and horsewhipping hiin ; 
and, in reply to a remark that this would 
be a dangerous thing to do, and that 
Judge Field would resent it, he said : "If 
Judge Field resents it, I will kill him." 
And while in jail Mrs. Terry exhibited to 
a witness Terry's knife, at which he 
laughed, and said, " Yes, I always carry 
that, " and made a remark about judges 
and marshals, Uiat " they were all a lot of 
cowardly curs, " and he would "see some 
of them in their graves yet. " Mrs. Terry 
a'so said that she expected to kilT Judge 
Field some day. Perhaps the clearest 
expression of Terry's feelings and inten- 
tions in the matter Avas in a conversation 
with Mr. Thomas T. Williams, editor of 
one of the daily newspapers of California. 
This interview was brought about by a 
message from Terry requesting Williams 
to call and see him. In speaking of the oc- 
currences in the court, he said that Justice 
Field had put a lie in the record about 



him, and when he met Field he would have 
to take that back, " and if he did not take 
it back, and apologize for having lied 
about him, he would slap his face or pull 
his nose. " "I said to him, " said the wit- 
ness, "'Judge Terry, would not that be a 
dangerous thing to do? Justice Field is 
not a man who would permit any one to 
put a deadly insult upon him, like that.' 
He said, 'Oh, Field won't fight.' I said: 
'Well, judge, I have found nearly all men 
will fight. Nearly every man will fight 
when there is occasion for it, and Judge 
Field hag had a character in this state of 
having the courage of his convictions, and 
being a brave man.' At the conclusion of 
that branch of the conversation, I said to 
him : 'Well, Judge Field is not your phys- 
ical equal, and if any trouble should oc- 
cur he would be very likely to use a weap- 
on.' He said: 'Well, that's as good a 
thing as I want to get.' The whole im- 
pression conveyed to me by this conversa- 
tion w^as that he felt he had some cause of 
grievance against Judge Field; that he 
hoped they might meet, that he might 
have an opportunity to iorceaquaiM'el up- 
on him, and he would get him into a 
fight." Mr. Williauis says that after the 
return of Justice Field to California, in 
the spring or summer of 1889, he had other 
conversations with Terry, in which the 
same vindictive feelings of hatred were 
manifested and expressed by him. It is 
useless to go over the testimony on this 
subject more particularly. It is sufficient 
to say that the evidence is abundant that 
both Terry and wife contemplated some 
attack upon Judge Field during his offi- 
cial visit to California in the summer of 
1889, which they intended should result in 
his death. Many of these matters were 
published in the new^spapeI•s, and the 
press of California was filled with the con- 
jectures of a probable attack by Terry on 
Justice Field as soon as it became known 
that he was going to attend the circuit 
court in that year. 

So much impresssed were the friends of 
Judge Field, and of public justice, both in 
California and in Washington, with the 
fear that he would fall a sacrifice to the 
resentment of Terry and his wife, that ap- 
plication was made to the attorney gen- 
eral of the United States suggesting the 
pi-opriety of his furnisliing some protec- 
tion to the judge while in California. This 
resulted in a correspondence between the 
attorney general of the United States, the 
district attorney, and the marshal of the 
northern district of California on that sub- 
ject. This correspondence is here set out: 

"Department of Justice, Washington, 
April 27th, 1889. John C. Franks, United 
States Marshal, San Francisco, Cal. — Sir: 
The proceedings which have heretofore 
been had in connection with the case of 
Mr. and Mrs. Terry in your United States 
circuit court have become matter of public 
notoriety, and I deem it my duty to call 
your attention to the propriety of exercis- 
ing unusual caution, in case further pro- 
ceedings shall be had in that case, for the 
protection of his honor. Justice Field, or 
whoever may be called upon to hear and 
determine the matter. Of course, I do not 
know what may be the feelings or purpose 
of Mr. and Mrs. Terry in the premises, but 



20 



FEDERAL JURISDICTION^. 



many thirij2:s whicti have happened indi- 
cate that violence on their part is not im- 
possible. It is due to the dignity and in- 
dependence of the court, and the character 
of its judge, that no effort on the part of 
the government shall be spared to make 
them feel entirely safe and free from anxie- 
ty in the discharge of their high duties. 
You will understand, of course, that this 
letter is not for the public, but to put you 
upon your guard. It will be proper for 
you to show it to the district attorney if 
deemed best. Yours, truly, W. H. H. Mil- 
ler, Attorney General." 

"United States Marshal's Office, North- 
ern District of California, San Francisco, 
May 6, 1889. Hon. W. H. H. Miller, Attor- 
ney General, VA'ashington, D. C. — Sir: 
Yours of the 27th ultimo at hand. AVhen 
the Hon. Judge Lorenzo Sawyer, our cir- 
cuit judge, returned from Los Angeles, 
some time before the celebrated court 
scene, and informed me of the disgraceful 
action of Mrs. Terry towards him on the 
cars while her husband sat in front, smil- 
ingly approving it, I resolved to u'atch 
the Terrys, (and so notified my deputies,) 
whenever they should enter the court- 
room, to be ready to suppress the very 
first indignity offered by either of them to 
the judges. After this, at the time of 
their ejectment from the court-room, 
when I held Judge Terry and his wife as 
prisoners in my private office, and heard 
his threats against Justice Fieed, I was 
more fully determined than ever to throw 
around the justice and Judge Sawyer 
every safeguard I could. I have given 
the matter careful consideration, with the 
determination to fully protect the federal 
judges at this time, trusting that the de- 
partment will reimburse me for any rea- 
sonable expenditure. I have always, 
whenever there is any likelihood of either 
Judge or Mrs. Terry appearing in court, 
had a force of deputies with myself on 
hand to watch their every action. You 
can rest assured that when Justice Field 
arrives he, as well as all thefederal judges, 
will be protected from insults, and where 
an order is made it will be executed with- 
out fear as to consequences. I shall fol- 
low your instructions, and act with more 
than usual caution. I have already con- 
sulted with the United States attorney, 
J. T. Carey, Esq., as to the advisability 
of making application to you, at the time 
the Terrys are tried upon criminal charges, 
for me to select two or more detectives to 
assist in the case, and also assist me in 
protecting Justice Field while in my dis- 
trict. I wish the judges to feel secure, and 
for this purpose will see to it that their 
every wish is promptly obeyed. I notice 
your remarks in regai-d to the publicity of 
your letter, and will obey your request. I 
shall only be too happy to receive any 
suggestions from you at any time. The 
opinion among the better class of citizens 
here is very bitter against the Terrys, 
though, of course, they have their friends, 
and, unfortunately, among that class it is 
necessary to watch. Your most obedient 
servant, J. C. Franks, U. S. Marshal, 
Northern Dist. of Cal. " 

"San Francisco, Cal., May 7, 18S9. Hon. 
W. H. H. Miller, U. S. Attorney General, 



Washington, D. C. — Dear Sir: Marshal 
Franks exhibited to meyour letter bearing 
date the 27th ult., addressed to him upon 
the subject of using. due caution by way 
of protecting Justice Field and the federal 
judges here in the discharge of their duties 
in matters in which the Terrys are inter- 
ested. I noted your suggestion with a 
great degree of pleasure, not because our 
marshal is at all disposed to leave any- 
thing undone within his authority or pow- 
er to do, but because it encouraged him to 
know and feel that the head of our depart- 
ment was in full sympathy with theefforts 
being made to protect the judges, and vin- 
dicate the dignity of our courts. I write 
merely to suggest that there is just reason, 
in tlie light of the past and the threats 
made by Judge and Mrs. Terry against 
Justice Field and Judge Sawyer, to ap- 
prehend personal violence at any moment 
and at any place, as well in court as out 
of court, and that, while due caution has 
always been taken by the marshal when 
either Judge or Mrs. Terry is about the 
building in which the courts are held, he 
has not felt it within his authority to 
guard either Judge Sawyer or Justice 
Field against harm when away from the 
appraisers' building. Discretion dictates, 
however, that a protection should be 
thrown about them at other times and 
places, when proceedings are being had 
before them in which the Terrys are inter- 
ested; and I verily believe, in view of the 
direful threats madeagainstJustice Field, 
that he will be in great danger at all times 
while here. Mr. Franks is a prudent, cool, 
and courageous officer, who ^vill not abuse 
any authority granted him. I would there- 
fore suggest that he be authorized, in his 
discretion, to retain one or more deputies, 
at such times as he may deem necessary, for 
the puri)oses suggested. That publicity 
may not be given to the matter, it is im- 
portant that the deputies whom he may 
select be not known as such; and, that 
efficient service may be assured for the 
purposes indicated, it seems to me that 
they should be strangers to the Terrys. 
The Terrys are unable to appreciate that 
an officer should perforin his official duty 
when that duty in any way requires his 
efforts to be directed against them. The 
mai'shal, liis deputies, and myself suffer 
daily indignities and insults from Mrs. 
Terry, in court and out of court, commit- 
ted in the presence of her husband, and 
Avithout interff^-ence upon his part. I do 
not purpose being deterred from any duty, 
nor do 1 puri)ose being intimidated in the 
least degree from doing my whole duty in 
the premises; but I shall feel doubly as- 
sured in being able to do so knowing that 
our marshal has your kind wishes and en- 
couragement in doing everything needed 
to protect the officers of the court in the 
discharge of their duties. This, of course, 
is not intended for the public files of your 
office, nor will it be on file in my office. 
Prudence dictates great caution on the 
part of the officials who may be called up- 
on to haveanj'thing to do in the premises, 
and I deem it to be of the greatest impor- 
tance that the suggestions back and forth 
be confidential. I shall write you further 
upon the subject of these cases in a few 



POWERS AND PROCEDURE OF FEDERAL COURTS. 



21 



days. I have the honor to be your moat 
obedient servant, John T. Carey, U.S. At- 
torney. " 

"Department of Justice, Washington, D. 
C, May 27, 1889. J. C. Franks, Esq., United 
States Marshal, San Francisco, Cal. — Sir: 
Referring to former correspondence of the 
department relating to a possible disor- 
der in the session of the approaching term 
of court, owing to the small number of 
bailiffs under your control to preserve or- 
der, you are directed to emi^loy certain 
special deputies at a per diem of five dol- 
lars, payable out of the appropriation for 
fees and expenses of marshals, to be sub- 
mitted to the court, as a separate account 
from your other accounts against thegov- 
ernraent, for approval, under section 846, 
Revised Statutes, as an extraordinary ex- 
pense, that the same maybe forwarded to 
this department in order to secure execu- 
tive action and approval. Very respect- 
fully, W. H. H. Miller, Attorney Gen- 
eral." 

The result of this correspondence was 
that Marshal Franks appointed Mr. Nea- 
gle a deputy-marshal for the northern dis- 
trict of California, and gave him special in- 
structions to attend upon Judge Field 
both in court and while going from one 
court to another, and protect him from 
any assault that might beattemptedupon 
him by Terry and wife. Accordingly, when 
Judge Field went from San Francisco to 
Los Angeles, to hold the circuit court of the 
United States at that place, Mr. Neagle ac- 
companied him, remained with him for the 
few days that he was engaged in the busi- 
ness of that court, and returned with him 
to San Francisco. It appears from the 
uncontradicted evidence in the case that, 
while the sleeping-car in which were Jus- 
tice Field and Mr. Neagle stopped a mo- 
ment, in the early morning, at Fresno, 
Terry and wife got on the train. The fact 
that they were on the train became known 
to Neagle, and he held a conversation with 
the conductor as to what peace-officers 
could be found at Lathrop,where the train 
stopped for breakfast ; and the conductor 
was requested to telegraph to the proper 
officers of that place to have a constable 
or some peace-officer on the ground when 
the train should arrive, anticipating that 
there might be violence attempted by Ter- 
ry upon Judge Field. It is sufficient to 
say that this resulted in no available aid 
to assist in keeping the peace. When the 
train arrived, Neagle informed Judge 
Field of the presence of Terry on the 
train, and advised hira to remain, and take 
his breakfast in the car. This the judge 
refused to do, and he and Neagle got out 
of the car, and went into the dining-room, 
and took seats beside each other in the 
place assigned them by the person in charge 
of the breakfast-room ; and very shoi'tlj' 
after this Terry and wife came into the 
room, and Mrs. Terry, recognizing Judge 
Feld, turned and left in great haste, while 
Terry passed beyond where Judge Field 
and Neagle were, and took his seat at an- 
other table. It was afterwards ascertained 
that Mrs. Terry went to the car, and took 
from it a satchel in which was a revolver. 
Before she returned to the eating-room, 
Terry arose from his seat, and, passing 



around the table in such a way as brought 
him behind Judge Field, who did not see 
him or notice him, came up where he was 
sitting with his feet under the table, and 
struck him a blow on the side of his face, 
which was repeated on the other side. He 
also had his arm drawn back and his fist 
doubled up, apparently to strike a third 
blow, when Neagle, who had been observ- 
ing him all this time, arose from his seat 
with his revolverin his hand, and in a very 
loud voice sh(juted out: "Stoi)!stop! I 
am an officer!" Upon this Terry turned 
his attention to Neagle, and, as Neagle 
testifies, seemed to recognize him, and im- 
mediately turned his hand to thrust it in 
his bosom, as Neagle felt sure, with the 
purpose of drawing a bowie-knife. At this 
instant Neagle fired two shots from his re- 
volver into the body of Terry, who imme- 
diately sank down, and died in a few min- 
utes. Mrs. Terry entered the room, with 
the satchel in her hand, just after Terry 
sank to the floor. She rushed up to the 
place where he was, threw herself upon his 
body, madeloud exclamations and moans, 
and commenced inviting the spectators to 
avenge her wrong upon Field and Neagle. 
She appeared to be carried a^wa^* by pas- 
sion, and in a very earnest manner charged 
that Field and Neagle had murdered her 
husband intentionally ; and shortly after- 
wards she appealed to the persons present 
to examine the body of Terry to see that 
he had no weapons. This she did once or 
twice. The satchel which she had, being 
taken from her, was found to contain a 
revolver. These are the material circum- 
stances produced in evidence before the cir- 
cuit court on the hearing of this habeas 
corpus case. It is but a short sketch of a 
history which is given in OA'er 500 pages in 
the record, but we think it is sufficient to 
enable us to apply the law of the case to 
the question before us. Without a more 
minute discussion of this testimony, it pro- 
duces upon us the conviction of a settled 
purpose on the part of Terry and his wife, 
amounting to a conspiracy, to murder 
Justice Field ; and we are quite sure that 
if Neagle had been merely a brother or a 
friend of Judge Field, traveling with him, 
and aware of all the previous relations of 
Terry to the judge, — as he was, — of his 
bitter animosity, his declared purpose to 
have revenge even to the point of killing 
him, he would have been justified in what 
he did in defense of Mr. Justice Field's life, 
and possibly of his own. 

But such a justification would be a 
proper subject for consideration on a 
\v\a\. of the case for murder in the courts 
of the state of California ; and there exists 
no authority in the courts of the United 
states to di-scharge the prisoner while 
held in custody by the state authorities 
for this offense, unless there be found in 
aid of the defense of the prisoner some ele- 
ment of power and authority asserted un- 
der the government of the United States. 
This element is said to be found in the 
facts that Mr. Justice Field, when at- 
tacked, was in the immediate discharge of 
his duty as judge of the circuit courts of 
the United States within California; that 
the assault upon him grew out of the ani- 
mosity of Terry and wife, arising out of 



22 



FEDERAL JURISDICTION. 



the previous discharge of liis duty as cir- 
cuit justice in the case, for which tliey 
were committed for contempt of court; 
and that the deputy-marshal of the Unit- 
ed States who killed Terry in defense of 
Field's life, was chai-ged with a duty, un- 
der the law of the United States, to pro- 
tect Field from the violence which Terry 
was inflicting, and wliich was intended to 
lead to Field's death. To the inquiry 
whether this proposition is sustained by 
law and the facts wliich we have recited, 
we now address ourselves. 

Mr. Justice Fiicld was a member of the 
supreme court of the United States, and 
had been a member of that court for over 
a (piarter of a century, during which he 
had become venerable for his age and for 
hislong and valuable service inthatcourt. 
The business of the supreme court has be- 
come so exacting that for many years 
past the justices of it have been compelled 
to renuiin for the lari^er part of the year 
in Washington city, from whatever part 
of the country they may have been ap- 
pointed. The term for each year, includ- 
ing the necessary travel and preparations 
to attend at its beginning, has generally 
lasted from eight to nine montlis. But 
the justices of tliis court have imposed 
upon them other duties, the most impor- 
tant of which ai'ise out of the fact that 
they are also judges of the cii'cuit courts 
of the United States. Of these circuits 
there are nine, to each one of which a jus- 
tice of tlie supreme court is allotted, under 
section G06 of the Revised Statutes, the 
provision of which is as follows: "The 
cliief justice and associate justices of the 
supreme court shall be allotted among the 
circuits by an order of the court; and a 
new allotment shall be made whenever it 
becomes necessary or convenient, by reason 
of the alteration of any circuit, or of the 
new appointment of achief justiceor asso- 
ciate justice, or otherwise. " Section GIO 
declares that it "shall be tlie duty of the 
chief justice and of each justice of the su- 
preme court to attend at least one term of 
the circuit court in each district of the cir- 
cuit to which he is allotted during every 
period of two years." Although this en- 
actment does not require, in terms, that 
the justices siiall go to their circuits more 
than t)nce in two years, the effect of it is 
to compel most of them to do this, be- 
cause there are so many districts in many 
of the circuits that it is impossible for the 
circuit justice to reach them all in one 
year; and the result of this is that hegoes 
to some of them in one year, and to 
others in the next year, thus requiring an 
attendance in the circuit every year. The 
justices of the supreme court have been 
members of the circuit courts of the United 
States ever since the organization of the 
government; and their attendance on the 
circuit, and appearance at the places 
Avhere the courts are held, has always been 
tiiought to be amatterof importance. In 
order to enable him to perform this duty, 
Mr. Justice Fikld had to travel each year 
from \Vashingt(ui city, near the Atlantic 
coast, to San Francisco, on the Pacific 
coast. In doing this, lie was as much in the 
discharge of a duty imposed upon him by 
law as he was while sitting in court and try- 



ing causes. There are many duties which 
the judge performs outside of the court- 
room where hesits to pronouncejudgment 
or to presid'! over a trial. The statutes 
of the United States, and the established 
practice of the courts, require that the 
judge perform a very large share of his ju- 
dicial labors at what is called "chambers. " 
This chamber work is as important, as 
necessary, as much a discharge of his of- 
ficial duty, as that performed in the court- 
house. Important cases are often argued 
before the judge at any place convenient 
to the parties concerned, and a decision of 
the judge is arrived at by investigations 
made in his own room, w^ierever he may 
be; and it is idle to say that this is not 
as much the performance of judicial duty 
as the filing of the judgment with the 
clerk, and the announcement of the re- 
sult in open court. So it is impossible 
for a justice of the supreme court of the 
United States, who is compelled by the 
obligations of duty to be so much in 
Washington city, to discharge his duties 
of attendance on the circuit courts, as pre- 
scribed by section (!10, without travaling, 
in the usual and most convenient modes 
of doing it, to the place wlicre the court 
is to be held. Th-^is duty is as much an ob- 
ligation imposed by the law as if it had 
said in words: "The justices of the su- 
preme Court shall go from Washington 
city to the place where their terms are 
held every year. " .Justice Field had not 
only left Washington, and traveled the 
3,000 miles or more which was necessary 
to reach his circuit, but he had entered 
upon the duties of that circuit, had held 
tiie court at San Francisco for some time, 
and, taking a short leave of that court, 
had gone down to Los Angeles, another 
place where a court was to be held, and 
sat as a judge there for several days, hear- 
ing cases and rendering decisions. It was 
in the necessary act of returning from Los 
Angeles to San Francisco, by the usual 
mode of travel between the two places, 
where his court was still in session, and 
where he was required to be, that lie was 
assaulted by Terry in the manner which 
we have already described. 

The occurrence which we are called upon 
to consider was of so extraordinary a 
character that it is not to be expected that 
many cases can be found to cite as author- 
ity ui)on the subject. In the case of U. S. 
v. The Little Charles, 1 Brock. 380,* a ques- 
tion arose bef(jre Chief Justice Marshall, 
holding the circuit court of the United 
States for Virginia, as to the A'alidity of 
an order made by the district judge at his 
chambers, and not in court. The act of 
congress authorized stated terms of the 
district court, and gave the judge power 
to hold special courts, at his discretion, 
either at the place appointed by the law, 
or such other ])!ace in the district as the 
nature of the business and his discretion 
should direct. He says: " It does not seem 
to be a violent construction of such an act 
to consider the judge as constituting a 
court whenever he proceeds on judicial 
business;" and cites the practice of the 
courts in support of that view of the sub- 

4 Fed. Cas. No. 15,613. 



POWERS AND PROCEDURE OF FEDERAL COURTS. 



23 



jf^ct. In tbf case of U. S. v. Gieason. 1 
Woolw. 128,5 the prisoner was indicted for 
the murder of two enrolling officers who 
were charged with the duty of arresting 
deserters, or those who had been drafted 
into the service and had failed to attend. 
These men, it was said, had visited the re- 
gion of country where they were mur- 
dered, and, liaving failed of accomplisliing 
their purpose of arresting the deserters, 
were on their return to their home wlien 
they were liilled; and thecourt was asked 
to instruct the jury that under these cir- 
cumstances they were not engaged in the 
duty of arresting tlie deserters named. " It 
is claimed by the counsel for the defend- 
ant, " says the report, "that if the parties 
killed liad been so engaged, and had come 
to that neigborhood with the purpose of 
arresting the supposed, deserters, but at 
the moment of the assault had abandoned 
the intention of making thea.rrests at tliat 
time, and were returning to lieadquarters 
at Grinnell with a view to making other 
arrangements for arrest at another time, 
they were not so engaged as to bring the 
case within the law. " But the court lield 
that this was not a sound construction of 
the statute, and "that if the parties l<illed 
had come into that neigiiborhood with in- 
tent to arrest the deserters named, and 
had been employed by the proper officer 
for that service, and were, in the proper 
prosecution of that purpose, returning to 
Grinnell with a view to making other ar- 
rangements to discharge this duty, they 
were still engaged in arresting deserters, 
vsathin the meaning of the statute. It is 
not necessary," said thecourt, "that the 
party killed should be engaged in the im- 
mediate act of arrest, but it is sufficient if 
he be employed in and about that business 
when assaulted. The purpose of the law' 
is to protect the life of the person so em- 
ployed, and this protection continues so 
long as he is engaged in a service necessa- 
ry and proper to that employment. " We 
have no doubt that Mr. Justice Field, 
when attacked by Terry, was engaged in 
the discharge of his duties as circuit justice 
of the ninth circuit, and was entitled to 
all the protection, under those circum- 
stance.s, which the law could give him. 

It is urged, however, that there exists 
no statute authorizing any such protection 
as that which Neagle was instructed to 
give Judge Fikld in the present case, 
and, indeed, no protection whatever 
against a vindictive or malicious assault 
growing out of the faithful discharge of his 
official duties ; and that the language of 
section 753 of the Revised Statutes, that 
the party seeking the benefit of the writ of 
habeas corpiiff must, in this connection, 
show that he is "in custody for an act 
done or omitted in pursuance of a law of 
the United States," makes it necessary 
that upon this occasion it stiould be 
shown that the act for which Neagle is im- 
prisoned was done by virtue of an act of 
congress. It is not supposed that any spe- 
cial act of congress exists which author- 
izes the marshals or deputy-marshals of 
the United States, in express terms, to ac- 
company the judges of the supreme court 
through their circuits, and act as a body- 



5 Fed. Oas. No. 15,216. 



guard to them, to defend them against 
malicious assaults against their persons. 
But we are of opinion that this view of 
the statute is an unwarranted restridion 
of the meaning of a law designed to ex- 
tend in a liberal manner the benefit of the 
writ oi habeas corpus to persons impris- 
oned for the performance of their duty; 
and we are satisfied that, if it was the 
duty of Neagle, under the circumstances, — 
a duty which could only arise under the 
laws of the United States, — to defend Mr. 
Justice Field from a murderous attack 
upon him, he brings himself within the 
meaning of the section we have recited. 
This view of the subject is confirmed by 
the alternative provision that lie must be 
in custody "for an act done or omitted in 
pursuance of a law of the United States, 
or of an oi'der, process, or decree of a court 
or a judge thereof, or is in custody in vio- 
lation of the constitution or of a law or 
treaty of the United States. " In the view 
we take of the constitution of the United 
States, any obligation fairly and properly 
inferable from that instrument, or any 
duty of the marshal to be derived from the 
general scope of his duties under the laws 
of the United States, is a "law, " within 
the meaning of this phrase. It would be a 
great reproach to the system of govern- 
ment of the United States, declared to be 
within its sphere sovereign and supreme, 
if there is to be found within the domain 
of its powers no means of protecting the 
judges, in the conscientious and faithful 
discharge of their duties, from the malice 
and hatred of those upon whom their judg- 
men ts may operate unfavorably. It has in 
modern times become apparent that the 
physical health of the community is more 
efficiently promoted by hygienic and pre- 
ventive means than by the skill which is 
applied to the cure of disease after it has 
become fully developed. So, also, the 
law, which is intended to prevent crime, 
in its general spread among the communi- 
ty, by regulations, police organization, 
and otherwise, which are adapted for the 
protection of the lives and property of cit- 
izens, for the dispersion of mobs, for the 
arrest of thieves and assassins, for the 
watch which is kept over the community, 
as well as over this class of people, is more 
efficient than punishment of crimes after 
they have been committed. If a person in 
the situation of Judge Field could have 
no other guaranty of his personal safety 
while engaged in the conscientious dis- 
charge of a disagreeable duty than the fact 
that, if he was murdered, his murderer 
would be subject to the laws of a state, 
and by those laws could be punished, the 
security would be very insufficient. The 
plan which Terry and wife had in mind, of 
insulting him and assaulting him, and 
drawing him into a defensive physical con- 
test, in thecourse of which they would slay 
him, shows the little value of such reme- 
dies. We do not believe that the govern- 
ment of the United States is thus inefficient, 
or that its constitution and laws have left 
the high officers of the government so de- 
fenseless and unprotected. 

The views expressed by this court, 
through Mr. Justice Bradley, in Ex parte 
Siebold, 100 U. S. 371, 394. are very perti- 
nent to this subject, and express our views 



21 



FEDERAL JURISDICTION. 



with great force. That was a case of a 
wi-it «jf hiibeas corpus, where Siebohl had 
b -on indicted in the circuit court of the 
United States for the district of Maryland 
for an offense couiniitted against the elec- 
tion laws during an election at which 
meiubors of congress and officers of the 
state of Maryland were elected. He was 
convicted, and sentenced to fine and ini- 
prisonment. and filed his petition in this 
court for a writ of hnhfits corpus, to be 
relieved on the ground that the court 
which had convicted him was without ju- 
risdiction. The foundation of this allega- 
tion was that the congress of the United 
States had no right to prescribe laws for 
the ( onduct of the election in question, or 
for enforcing the laws of the state of Mary- 
land by the courts of the United States. 
In the course of the discussion of the rela- 
tive i)owers of the federal and state courts 
on this subject, it is said: "Somewhat 
akin to the argument which has been c<»n- 
sidered is the objection that the deputy- 
marshals authorized by the act of congress 
to be created, and to attend the elections, 
are authorized to keep the peace, and that 
this is a duty which belongs to the state 
authorities alone. It is argued that the 
preservation of peace and good order in 
society is not within the powers confided 
to the government of the United States, 
but belongs exclusively to the states. 
Here, again, we are met with the theory 
that the government of the United States 
does not rest upon the soil and territory 
of the country. We think that this theory 
is founded on an entire misconception of 
the nature and powers of that govern- 
ment. We hold it to be an inccmtroverti- 
ble principle that the government of the 
United States may, by means of physical 
force, exercised through its official agents, 
execute on every foot of American soil the 
powers and functions that belong to it. 
This necessarily involves the power to 
command obedience to its laws, and hence 
the power to keep the peace to that ex- 
tent. This power to enforce its laws and 
to execute its functions in all places does 
not derogate from the power of the state 
to execute its laws at the same time and 
in the same places. The one does not ex- 
clude the other, except where both cannot 
be executed at the same time. In that 
case the woi-ds of the constitution itself 
show which is to yield. ' This constitution, 
and all laws which shall be made in pur- 
suance thereof, * * * shall be the su- 
preme law of the land.' * * * Without 
the concurrent sovereignty referred to, 
the national government would be notli- 
ing but an advisory government. Its ex- 
ecutive power would be absolutely nulli- 
fied. AVhy do we have marshals at all, if 
they cannot physically lay their hands on 
persons and things in the performance of 
their proper duties? What functions can 
they i)erform,if they cannot use force? In 
executing the i)rocess of the courts, must 
they call on the nearest constable for pro- 
tection? Must they rely on him to use the 
requisite compulsion, and to keep the 
peace, whilst they are soliciting and en- 
treating the parties and by-standers to 
aljow the law to take its course? This is 
the necessary consequence of the positions 
that are assumed. If we indulge in such 



impracticable views as these, and keep on 
refining and re-refining, we shall drive the 
national government out of the United 
States, and relegate it to the District of 
Columbia, or perhaps to some foreign soil. 
We shall bring it back to a condition of 
greater helplessness than that of the old 
confederation. * * * It mustexecuteits 
powers, or it is no government. It must 
execute them on the land as well as on 
the sea, on things as well as on persons. 
And, to do this, it must necessarily have 
power to command obedience, preserve or- 
der, and keep the peace ; and no person or 
power in this land has the right to resist 
or question its authority, so long as it 
keeps within the bounds of its jurisdiction. "" 
At the same term of the court, in the case 
of Tennessee v. Davis, 100 U. S. 257, 2()2, 
where the same questions in regard to the 
relative powers of the federal and state 
courts were concerned, in regard to crim- 
inal offenses, the court expressed its views 
through Mr. Justice Strong, quoting from 
the case of Martin v. Hunter,! Wheat. 3(53, 
the foUowinglanguage: "The general gov- 
ernment must cease to exist whenever it 
loses the power of protecting itself in the 
exercise of its constitutional powers, "and 
then proceeding: "Itcau act only through 
its officers and agents, and they must act 
within the states. If, when thus acting, 
and within the scope of their authority, 
those ofticers can be arrested and brought 
to trial in a state court for an alleged of- 
fense against the law of the state, yet war- 
ranted by the federal authority they pos- 
sess, and if thegeneral governmentis pow- 
erless to interfere at once for their protec- 
tion, — if their protection must be left to 
the action of the state court, — the opera- 
tions of the general government may at 
any time be arrested at the will of one of its 
members. The legislation of a state may 
be unfriendly. It may afhx penalties to 
acts done under the immediate direction of 
the national governmeat and in obedience 
to its laws. It may deny the authority con- 
ferred by those laws. The state court may 
administer not only the laws of the state, 
but equally federal law, in such a manner as 
to paralyze the operations of the govern- 
ment; and even if, after trial and final 
judgment in the state court, the case can 
be brought into the United States court 
for review, the officer is withdrawn from 
the discharge of his duty during the pen- 
dency of the prosecution, and the exercise 
of acknowledged federal power arrested. 
We do not think such an element of weak- 
ness is to be found in the constitution. 
TheUnited Statesisagoverninent with au- 
thority extending over the whole territory 
of the Union, acting upon the states and 
upon the people of the states. While it is 
limited in the number of its powers, so far 
as its sovereignty extends, it is supreme. 
No state government can exclude it from 
the exercise of any authority conferred up- 
on it by the constitution, obstruct its 
authorized officers against its will, or 
withhold from it for a moment the cogni- 
zance of any subject which that instrument 
has committed to it. " 

To cite all the cases in which this principle 
of the supremacy of the government of the 
United States in the exercise of all the 
powers conferred upon it by the constitu- 



POWERS AND PROCEDURE OE FEDERAL COURTS. 



25 



tioii is maintained, would be an endless 
task. We have selected these as being the 
most forcible expressions of the views of 
the court, having a direct reference to the 
nature of the case before us. Where, then, 
are we to look for the protection which 
we have shown Judge Fikld was entitled 
to when engaged in the discharge of his 
official duties? Not to the courts of the 
United States, because, as has been more 
than once said inthiscourt, in the division 
of the powers of government between the 
three great departments, executive, legisla- 
tive, and judicial, the judicial is the weak- 
est for the purposes of self-protection, and 
for the enforcement of the powers which it 
exercises. The ministerial officers through 
whom its commands must be executed are 
marshals of the United States, and belong 
emphatically to the executive department 
of the government. They are appointed 
by the president, with the advice and con- 
sent of the senate. They are removable 
from office at his pleasure. They are sub- 
jected by act of congrtjss to the supervis- 
ion and control of the department of jus- 
tice, in the hands of one of the cabinet of- 
ficers of the president, and their compen- 
sation is provided by acts of congress. 
The same may be said of the district at- 
torneys of the United States who prose- 
cute and defend the claims of the govern- 
ment in the courts. The legislative branch 
of the government can only protect the 
judicial officers by the enactment of laws 
for that purpose, and the argument we 
are now combating assumes that no such 
law has been passed by congress. If we 
turn to the executive department of the 
government, we find a very different con- 
dition of affairs. The constitution, § 3, 
art. 2, declares that the ijresiclent "shall 
take care that the laws be faithfully exe- 
cuted; "and he is provided with the means 
of fulfilling this obligation by his author- 
ity to commission all the officers of the 
United States, and, by and with the advice 
and consent of the senate, to appoint the 
most important of them, and to fill vacan- 
cies. He is declared to be the commander 
in chief of the army and navy of the United 
States. The duties which are thus imposed 
upon him he is further enabled to perform 
by the recognition in the constitution, and 
the creation by acts of congress, of execu- 
tive departments, which have varied in 
number from four or five to seven or eight, 
who are familiarly called "cabinet minis- 
ters. " These aid him in the performance 
of the great duties of his office, and repre- 
sent him in a thousand acts to which it 
can hardly be supposed his personal at- 
tention is called ; and thus he is enabled to 
fulfill the duty of his great department, 
exijressed in the phrase that" he shall take 
care that the laws be faithfully executed. " 
Is this duty limited to the enforcement of 
acts of congress or of treatidfe of the 
United States according to their express 
terms; ordoes it include the rights, duties, 
and obligations growing out of the con- 
stitution itself, our international rela- 
tions, and all the protection implied by the 
nature of the government under the con- 
stitution? 

One of the most remarkable episodes in 
the history of our foreign relations, and 



which has become an attractive historical 
incident, is the case of Martin Koszta, a 
native of Hungary, who, though not fully 
a naturalized citizen of the United States, 
had in due form of law made his declara- 
tion of intention to become a citizen. 
Whilein Smyrna he was seized by command 
of the Austrian consul-general at that 
place, and carried on board the Hussar, 
an Austrian vessel, where he was held in 
close confinement. Capt. Ingraham, in 
command of the American sloop of war 
St. liOuis, arriving in port at that criti- 
cal period, and ascertaining that Koszta 
had with him his naturalization papers, 
demanded liis surrender to him, and was 
compelled to train his guns upon the Aus- 
trian vessel before his demands were com- 
plied with. It was, however, to prevent 
bloodshed, agreed that Koszta should be 
placed in the hands of the French consul 
subject to the result of diplomatic nego- 
tiations between Austria and the United 
States. The celebrated corresj^ondence be- 
tween Mr. Marcy, secretary of state, and 
Chevalier Hulsemann, the Austrian minis- 
ter at Washington, which arose out of 
this affair, and resulted in the release and 
restoration to liberty of Koszta, attracted 
a great deal of public attention; and the 
position assumed by Mr. Marcy met the 
approval of the country and of congress, 
■who voted a gold medal to Capt. Ingra- 
ham for his conduct in the affair. Upon 
what act of congress then existing can 
any one lay his finger in support of the 
action of our government in this matter? 

bo, if the president or the postmaster 
general is advised that the mails of the 
United States, possibly carrying treasure, 
are liable to be robbed, and the mail car- 
riers assaulted and murdered, in any par- 
ticular region of country, who can doubt 
the authority of the president, or of one 
of the executive departments under him, 
to make an order for the protection of the 
mail, and of the persons and lives of its 
carriers, by doing exactly what was done 
in the case of Mr. Justice Field, namely, 
providing a sufficient guard, whether it 
be by soldiers of the army or by marshals 
of the United States, with a posse comitatus 
pi'operly armed and equipped, to secure 
the safe performance of the duty of carry- 
ing the mail wherever it may be intended 
to go? 

The United States is the owner of mill- 
ions of acres of valuable public land, and 
has been the owner of much more, which 
it has sold. Some of these lands owe a 
large part of their value to the forests 
which grow upon them. These foi'ests are 
liable to depredations by people living in 
the neighborhood, known as "timber 
thieves, " who make a living by cutting 
and selling such timber, and who are tres- 
passers. But until quite recently, even if 
there be one now, there was no statute 
authorizing any preventive measures for 
the protection of this valuable public prop- 
erty. Has the president no authority to 
place guards upon the public territory to 
protect its timber? No authorits' to seize 
the timber when cut and found upon the 
ground? Has he no power to take any 
measures to protect this vast domain? 
Fortunately, we find this question an- 



FEDEKAL JURISDICTION. 



swered by this court in the case of Wells 
V. Nickles. 104 U. S. 444. That was a case 
in which a class of men appointed by local 
land-otHcers, iindei* instructions from the 
secretary of the interior, having found a 
large (juantity of this timber cut down 
from the forests of the United States, and 
lying where it was cut, seized it. The 
(luestion of the title to this property com- 
ing in controversy between Wells and 
Nickles, it became essential to inquire into 
the authority of these timber agents of the 
government, thus to seize the timber cut 
by trespassers on its lands. The court 
said : "The effort we have made to ascer- 
tain and fix the authority of these timber 
agents by any positive provision of law 
has been unsuccessful. " But the court, 
notwithstanding there Avas no special 
statute for it, held that the department of 
the interior, acting under the idea of pro- 
tecting from depredation timber on the 
lands of the government, had gradually 
come to assert the right to seize what is 
cut and taken away from them wherever 
it can be traced, and in aid of this the reg- 
istei-s and receivers of the land-office had, 
by instructions from the secretary of the 
interior, been constituted agents of the 
ITnited States for these purposes, with 
l)ower to appoint special agents under 
thems<^lves. And the court upheld the au- 
thority of the secretary of the interior to 
make these rules and regulations for the 
I)rotection of the public lands. 

One of the cases in this court in which 
this question was presented in the most 
imposing form is that of U. S. v. Tin Co., 
12.5 U. S. 273, 8 Sup. Ct. Rep. 850. In that 
case a suit was brought in the name of the 
United States, by order of the attt)rney 
general, to set aside a patent which had 
been issued for a large body of valuable 
land, on the grtjuiid that it was ol)tained 
from the government by fraud and deceit 
practiced upon its officers. A preliminary 
question was raised by counsel for defend- 
ant, which was earnestly insisted upon, as 
to the right of the attorney general or any 
other officer of the government to insti- 
tute such a suit in the absence of an3' act 
of congress authorizing it. It was con- 
ceded that there was no express authority 
given to the attorney general to institute 
that particular suit, or any suit of that 
class. The (luestion was one of very great 
interest, and was very ably argued both 
in the court below and in this court. The 
resjtonse of this court to that suggestion 
conceded that in the acts of congress es- 
tablishing the department of justice and 
defining the duties of the attorney general 
there was no such express authority ; and 
it was said that there was also no express 
authtn-ity to him to bring suits against 
debtors of the governnieiit upon bonds, or 
to begin criminal prosecutions, or to insti- 
tute criminal proceedings in any of the 
cases in which the Ignited States was plain- 
tiff, yet he was invested with the general 
sui)erintendence of all such suits. It was 
furthei- said : " If the United States, in any 
particidarcase, has a just cause for calling 
upon the judiciary of the countrv. in any 
of its courts, for relief, by setting' aside or 
annulling any of its contracts, its obliga- 
tions, or its most solemn instruments, the 



question of the appeal to the judicial tri- 
bunals of thecountry must primarily bede- 
cided by the attorney general of the United 
States. That such a power should exist 
somewhere, and that the United States 
should not be more helpless in r^'lieving it- 
self from frauds, impostures, and decep- 
tions than the private individual, is hardly 
open to argument. * * * There must, 
then, be an officer or officers of the govern- 
ment to determine when the United States 
shall sue, to decide for what it shall sue, 
and to be responsible that such suits shall 
be brought in appropriate cases. The at- 
torneys of the United States in every judi- 
cial district are officers of this character, 
and they ai"e by statute under the imme- 
diate SHpervisif)n and control of the attor- 
ney general. How, then, can it be argued 
thatif the United States has been deceived, 
entrapped, or defrauded into the making, 
under the forms of law, of an instrument 
Avhich injuriously affects its rights of prop- 
erty, or other rights, it cannot bring a 
suit to avoid the effect of such instrument 
thus fraudulently obtained without a si)e- 
cial act of congress in each case, or with- 
out some special authority applicable to 
this class of cases'? " The same (luestion 
was raised in the earlier c-ase of U. S. v. 
Hughes, 11 How. 5.32, and decided the same 
way. 

We cannot doubt the power of the pres- 
ident to take measures for the protection 
of a judge of one of the courts of the United 
States who, while in the discharge of the 
duties of his office, is threatened with a 
personal attack which may probably re- 
sult in his death; and we think it clear 
that where this protection is to be afforded 
through the civil power, thedeiiartment of 
justice is the proper one to set in motion 
the necessary means of protection. The 
correspondence, already recited in this 
opini(jn, between the marshal of the north- 
ern district of California and the attorney 
general and the district att(jrney of the 
United States for that distinct, although 
presci'ibing no very specific mode of afford- 
ing this protection liy the attorney gen- 
eral, is sufficient, we think, to warrant the 
marshal in taking the steps which he did 
take, in making the provisions which he 
did make, for the protection and defense 
of Mr. .lustice Fiki.d. 

But there is positive law investing the 
marshals and their deputies with powei'S 
which not only justify what Marshal Nea- 
gle did in this matter, but which imposed 
it upon him as a duty. In chapter 14, title 
13, of the Revised Statutes of the United 
States, which is devoted to the appoint- 
ment and duties of the district attorneys, 
marshals, and clerks of the courts of the 
United States, section 788 declares: "The 
marshals and their deputies shall liaA'e, in 
each state, the same powers in executing 
the laAvs of the United States as the sher- 
iffs and their deputies in such state may 
have, by law, in executing the laws there- 
of. " If, therefore, a sheriff of the sta te of 
California was authorized to do in regard 
to the hiAvs of California Avhat Neagle did, 
— that is. if he AA'as authorized to keep the 
peace, to protect a judge from assault 
and murder. — then Neagle was authorized 
to do the same thing in reference to the 



POWERS AND PROCEDURE OF FEDERAL COURTS. 



27 



laws of the United States. Section 4176 of 
the Political Code of California reads as 
follows: "The sheriff must (1) preserve 
the peace; (2) arrest and take before the 
nearest magistrate, for examination, all 
persons who attempt to commit, or have 
committed, a public offense; (3) prevent 
and suppress all affrays, breaches of the 
peace, riots, and insurrections which may 
come to his knowledge. " A.nd the Penal 
Code of California declares (section 197) 
that homicide is justifiable when commit- 
ted by any person "when resisting any 
attempt to murder any person, or to com- 
mit a felony, or to do some great bodily 
in.iur3' upon any person, " or " when com- 
mitted in defense of habitation, property, 
or person against one who manifestly in- 
tends or endeavors, by violence or sur- 
prise, to commit a felony. " That there is 
a peace of tlie United States ; tliat a man 
assaulting a judge of the United States 
while in the discharge of his duties violates 
that peace; that in such case the marshal 
of the United States stands in the same 
relation to the peace of the United States 
which the sheriff of the county d(.>es to the 
peace of the state of California, — are ques- 
tions too clear to need argument to prove 
them. That it would be the dvity of a 
sheriff, if one had been present at this as- 
sault by Terry upon Judge Field, to pre- 
vent this breach of the peace, to prevent 
this assault, to prevent the murder which 
was contemplated by it, cannot be doubt- 
ed. And. if, in performing his duty, it be- 
came necessary, for the protection of Judge 
Field or of himself, to kill Terry, in a case 
where, like this, it was evidently a ques- 
tion of the choice of who should be killed, 
— the assailant and violator of the law and 
disturber of the peace, or the unoffending 
man who was in his power, — there can be 
no question of the authority of the shei'iff 
to have killed Terry. So the marshal of 
the United States, charged with, the duty 
of protecting and guarding the judse of 
the United States court against this spe- 
cial assault upon his person and his life, be- 
ing present at the critical moment, when 
prompt action was necessary, found it to 
be his duty — a duty which he had no liber- 
ty to refuse to perform-to take the steps 
which resulted in Terry's death. This 
duty was imposed on him hy the section 
of the Revised Statutes which we have 
recited, in connection with the powers con- 
ferred by the state of California upon its 
peace officers, which become, by this stat- 
ute, in proper cases, transferred as duties 
to the marshals of the United States. 

But, all these questions being conceded, 
it is urged against the relief sought by this 
writ of habeas corpus that the question 
of Ihe guilt of the prisoner of the crime of 
murder is a question to be determined by 
the laws of (Jalifornia, and to be decided 
by its courts, and that there' exists no 
power in the government of the United 
States to take away the prisoner from the 
custody of the proper authorities of the 
state of California, and carry him before a 
judge of the court of the United States, 
and release him without a trial by juiy 
according to the laws of the state of Cal- 
ifornia. That the statute of the United 
States authorizes and directs such a pro- 



ceeding and such a judgment in a case 
where the offense charged against the pris- 
oner consists in an act done in pursuance 
of a law of the United States, and by virtue 
of its authority, and where the imprison- 
ment of the party is in violation of the con- 
stitution and laws of the United States, is 
clear by its express language. The enact- 
ments now found in the Revised Statutes 
of the United States on the subject of the 
wi'it of habeas corpus are the result of a 
long course of legislation forced upon con- 
gress by the attempt of the states of the 
Union to exercise the power of imprison- 
ment over officers and other persons assert- 
ing rights under the federal governn-ent 
or foreign governments, which the states 
denied. The original act of congress on 
the subject of the writ of habeas corpus, 
by its fourteenth section, authorized the 
judges and thecourts of the United States, 
in the case of prisoners in jail or in custody 
under or by color of the authority of the 
United States, orcommitted fortrial before 
some court of the same, or when necessary 
to be brought into court to testify, to issue 
the writ, and the judge or court before 
whom they were brought was directed to 
makeinqniry in to the cause of commitment. 
1 St. 81. This did not pi-esent tjie ques- 
tion, or at least it gave rise to no ques- 
tion which came before the courts, as to 
releasing by this writ parties held in cus- 
tody under the laws of the states. But 
when, during the controversy growing out 
of thenullitication laws of South Carolina, 
officers of the United States were arrested 
and imprisoned for the perfoi-mac.ce of 
their duties in collecting the revenue cf the 
United States in that state and held by 
the state authorities, it became necessary 
for the congress of the United States to 
take some action for their relief. Accord- 
ingly the act of congress of March 2, 1S33, 
(4 St. (i34,) among other i*emedies for such 
condition of affairs, provided by its seventh 
section that the federal judges should 
grant writs of 73a/7ea,s' co77>;i.S' in all cases 
of a prisoner in jail or confinement, where 
he should be committed or confined on or 
by any authority or law for any act done 
or omitted to be done in pursuance of a 
law of the United States, or any order, 
process, or decree of an.y judge or court 
thereof. 

The next extension of thecircumstances 
on which a writ of corpus habeas might 
issue by the federaljudges arose out of the 
celebrated McLeod Case, in which Mc- 
Leod, charged with murder, in a state 
couj't of New York, had pleaded that he 
was a British subject, and that what he 
harl done was under and by the authoi-ity 
of his government, and should be a matter 
of international adjustment, and that he 
was not subject to be tried by a court of 
New YoT"k under the laws of that state. 
Thefederal government acknowledged the 
force of this reasoning, and undertook to 
obtain from the government of the state 
of New York the I'elease of the prisoner, 
but failed. He was, how^ever, tried and 
acquitted, and afterwards released by the 
state of New York. This led to an exten- 
sion of the powers of thefederal judges un- 
derthewi-it of habeas corpus bv the act of 
August 2i), 1842, (5 St. 539,) entitled "An 



28 



FEDERAL JURISDICTION. 



act to provide further remedial justice in 
the courts of the United States. " It con- 
ferred upon them thepower to issue a writ 
of bahfiis corpus in all cases where the 
prisoner claimed that the act for wiiich he 
was held in custody was done under the 
sanction of any foreign power, and where 
the validity and effect of this plea depend- 
ed upon the law of nations. In advocat- 
in{>- the bill, which afterwards became a 
hiw on this subject. Senator Berrien, who 
introduced it ixito the senate, observed : 
"The object was to allow a foreigner pros- 
ecuted in one of the states of the Union 
f(^r an offense committed in that state, but 
which, he pleads, has been committed un- 
der authority of his own sovereignty or the 
authority of the low of nations, to be 
brought up on that issue before tlie only 
competent judicial power to decide iipon 
matters involved in foi-eign relations or 
the law of nations. The plea must show 
that it has reference to the laws or trea- 
ties of the United States or the law of na- 
tions ; and showing this, the writ of hnbens 
coi-pns is awarded to try that issue. If it 
shall appear that the accused lias a bar 
on the plea alleged, it is right and proper 
that he should not be delayed in prison, 
awaiting the proceedings of the state ju- 
risdiction in the preliminary issue of his 
])lea at bar. If satisfied of the existence in 
fact and validity in law of thebar,the fed- 
ei'al jurisdiction will have thepower of ad- 
ministering prompt relief. " No more forc- 
ible statement of the principle on which 
tlie law of the case now before us stands 
can be made. 

The next extension of the powers of the 
court under the writ of habeas corpus was 
the act of February 5, 1N(;7, (14 St. :jS5;) 
and this contains the broad ground of 
the present Revised Statutes, under which 
the relief is scjuglit in the case before us, 
and includes all cases of restraint of liber- 
ty in violation of the constitution or a law 
or treaty of the United States, and de- 
clares that "the said court or judge shall 
proceed in a summary way to determine 
the facts of the case, by hearing festimony 
and the ai-guments of the parties inter- 
ested, and, if it shall appear that the peti- 
tioner is deprived of his or her lib- 
erty in contravention of the constitution 
or laws of the United States, he or she 
shall forthwith be discharged and set at 
liberty. " 

It would seem as if the argument might 
close here. If the duty of the United 
States to protect its officers from violence, 
even to death, in discharge of the duties 
which its laws impose upon them, be es- 
tablished, and congress has made the writ 
of linbeas cor]>ns one of the means by 
which this protection is made efficient, 
and if the facts of this case show that the 
prisoner was acting both under the au- 
thority of law and the directions of his 
siii)erior officers of the department of jus- 
tice, we can see no reason why this vvrit 
should not be made to serve its purpose in 
the present case. We have already cited 
such decisions of this court as are most 
important and directly in point, and tliere 
is a series of cases decided by the circuit 
aTid district courts to the same purport. 
Several of these arose out of proceedings 



under the fugitive slave law, in which the 
marshal of the United States, while en- 
gaged in apprehending the fugitive slave 
with a view to returning him to his mas- 
ter in another state, Avas arrested by the 
authorities of the state. In many of these 
cases they made application to the judges 
of the United States for relief by the wi-it 
of hiibcas corpus, which gave rise to sev- 
eral very interesting decisions on this sub- 
ject. In Ex pai'te Jenkins, 2 Wall. Jr. .521, 
521), 6 the marshal, who had been engaged, 
while executing a warrant, in arresting a 
fugitive, in a bloody encounter, was him- 
self arrested under a warrant of a justice 
of the peace for assault with intent to kill, 
which makes the case very analogous to 
the one now under consideration. He pre- 
sented to the circuit court of the United 
States for the eastern district of Pennsyl- 
vania a petition for a writ of habeas cor- 
pus, which was heard before Mr. Justice 
Grikh, who held that under the act of 
ISo.'l, already referred to, the marshal was 
entitled to his discharge, because what he 
had done was in pursuance of and by the 
authority conferred upon him by the act 
of congress concerning the rendition of 
fugitive slaves. He said : "The authority 
conferred on the judges of the United 
States by this act of congress gives them 
all the power that any other court could 
exercise under the writ of habeas corpus, 
or gives them none at all. If, under such 
a writ, they may not discharge their officer 
when imprisoned ' by any authority ' for 
an act done in pursuance of a law of the 
United States, it would be impossible to 
discover for what useful purpose the act 
was passed. * * * It was passed w^hen 
a certain state of this Union had threat- 
ened to nullify acts of congress, and to 
treat those as criminals who should at- 
tempt to execute them ; and it was intend- 
ed as a remedy against such state legis- 
lation. " This same matter was up again 
when the fugitive slave, Thomas, had the 
marshal arrested in a civil suit for an al- 
leged assault and battei-y. He was car- 
ried before Judge Kane on another writ of 
habeas corpus, and again released. Id. 
581. A third time the marshal, being in- 
dicted, was arrested on a bench warrant 
issued by the state court, and again 
brought before the circuit court of the 
United States by a writ of habeas corpus, 
and discharged. Some remarks of Judge 
Kane on this occasion are very pertinent 
to the objections raised in the present 
case. Hesaid (Id. 543:) "It has been urged 
that my order, if it shall withdraw the 
relators from the prosecution pending 
against them, [in the state court,] will, in 
effect, prevent their trial by jury at all, 
since there is no act of congress under 
which they can be indicted for an abuse of 
process. It will not be an anomaly, how- 
ever, if the action of this court shall inter- 
fere with the trial of these prisoners by a 
jury. Our constitutions secure that mode 
of trial as a right to the accused; but 
they nowhere recognize it as aright of the 
government, either state or federal, still 
less of an individual prosecutor. The ac- 
tion of a jury is overruled constantly by 



6 Fed. Cas. No. 7,259. 



POWERS AND PliOCEDURE OF FEDERAL COURTS. 



29 



the granting of new trials after conviction. 
It is arrested by tlie entering of nolle pro- 
aegnis while the case is at bar. It is made 
ineffectual at any time by the discharge 
on habeas corpus. * * * And there is 
no harm in this. No one imagines that 
because a man is accused he must there- 
fore, of course, be tried. Public prosecu- 
tions are not devised for the purpose of 
indemnifying the wrongs of individuals, 
still less of retaliating them." Many oth- 
er decisions by the circuit and district 
courts to the same purport are to be 
fou7id, among them the following: Ex 
parte Robinson, 6 McLean, 355;''' U. S. v. 
Jailer Fayette Co., 2 Abb.U. S. 265 ;» Ram- 
sey v. Jailer Warren Co., 2 Flip. 451 ;9 In re 
Neill, S Blatchf. 156 ;io Ex parte Bridges, 2 
Woods, 42S ;ii Ex parte Royall, 117U. S. 24L 
6 Sup.Ct. Rep. 734. Similar language was 
used by Mr. Choate in the senate of the 
United States upon the passage of the act of 
1842. He said : "If you have the power to 
interpose after judgment, you have the 
powertodo so before. If youcan reverse a 
judgment, youcan anticipate its rendition. 
If, within the constitution, your judicial 
power extends to these cases or these con- 
troversies, wiiether you take hold of the 
case or controversy at one stage or an- 
other is totally immaterial. The single 
question submitted to the national tribu- 
nal, the question whether, under the stat- 
ute adopting the law of nations, the pris- 
oner is entitled to the exemption or im- 
munity he claims, ma.y as well be extract- 
ed from the entire case, and presented and 
decided in those tribunals before any judg- 
ment in the state court, as for it to be re- 
vised afterwards on a writ of error. Ei- 
ther way, they pass on no other question. 
Either way, they do not administer the 
criminal law of a state. In the one case 
as much as in the other, and no more, do 
they interfere with state judicial power. " 
The same answer is given in the present 
case. To the objection, made in argument, 
that the prisoner is discharged by this writ 
from the po wer of the state court to try him 
for the whole offense, the replj'^ is that if the 
prisoner is held in the state court to au- 
sw^er for an act which he was authorized 
to do by the law of the United States, 
which it was his duty to do as marshal of 
the United States, and if, indoing thatact, 
he did no more than what was necessary 
and proper for him to do, he cannot be 
g-uilty of a crime under the law of the state 

7 Fed. Gas. No. 11,935. 

8 Fed. Gas. No. 15,463. 

9 Fed. Gas. No. 11,547. 
10. Fed. Gas. No. 10,089. 
11 Fed. Gas. No. 1,862. 



of California. When these things are 
shown, it is established that he is innocent 
of any crime against the laws of the state, 
or oi any ocner authority'' whatever. 
There is no occasion for any further trial 
in the state court, or in any court. The 
circuit court of the United States was as 
corai>etent to ascertain these facts as any 
other tribunal, and it was not at all nec- 
essary that a jury should be impaneled to 
render a verdict on them. It is the exer- 
cise of a ijower common under all systems 
of criminal jurisprudence. There must al- 
ways be a preliminary examination by a 
committing magistrate, or some similar 
authority, as to whether there is an offense 
to be submitted to a jury; and, if this is 
submitted in the first instance to a grand 
jury, that is still not the right of trial by 
jury which is insisted on in the present 
argument. 

We have thus given, in this case, a most 
attentiveconsiderationto all thequestions 
of law and fact which we have thought to 
be properly involved in it. We have felt 
it to be our duty to examine into thefacts 
w'ith a completeness justified by the im- 
portance of the case, as well as from the 
duty imposed upon us by the statute, 
which we think requires of us to place our- 
selves, as far as possible, in the place of 
the circuit court, and to examine the tes- 
timon^' and the arguments in it, and to 
dispose of the party as law and justice re- 
quire. The result at which we have ar- 
rived upon this examination is that, in 
the protection of the person and the life 
of Mr. Justice Field whilein the discharge 
of his official duties, Neagie was authorized 
to resist the attack of Terry upon him ; 
that Neagie was correct in the belief that, 
without prompt action on his part, the 
assault of Terry upon the judge would 
have ended in the death of the latter; 
that, such being his well-founded belief, he 
was justified in taking the life of Terry, 
as the only means of jjreventing the death 
of the man who was intended to be his 
victim; that in taking the life of Terry, 
under the circumstances, he was acting 
under the authority of the law of the Unit- 
ed States, and was justified in so doing; 
and that he is not liable to answer in the 
courts of California on account of his part 
in that transaction. We therefore affirm 
the judgment of the circuit court authoiiz- 
ing his discharge from the custody of the 
sheriff of San Joaquin county. 

Field, J., did not sit at the hearing of 
this case, and took no part in its decision 

Mr. Chief Justice Fuller and Mr. Jus- 
tice Lamar dissented. 



so 



THE POWERS or CONGRESS. 



UNITED STATES v. KAGAMA et al. 
(6 Sup. Ct. 1109, 118 U. S. 373.) 

Suiu-eme Court of the United States. May 10, 

1886. 

On a certificate of division in opinion be- 
tween tlie judges of tlie circuit court of the 
T'nited States for the district of California. 

Atty. Gen. Garland and Sol. Gen. Goode, 
for the United States. Jos. D. Redding, for 
defendants. 



MILLER, J. The case is brought here 
bj' certittcate of division of opinion between 
the circuit judge and the district judge 
holding the circuit court of the United 
States for district of California. The ques- 
tions certified arise on a demurrer to an 
indictment against two Indians for murder 
committed on the Indian reservation of Hoopa 
Valley, in the state of California, the person 
miudered being also an Indian of said res- 
ervation. 

Though there are six cpiestions certified 
as the subject of difference, the point of 
them all is well set out in the third and 
sixth, which are as follows: "(3) Whether the 
provisions of said section 0, (of the act of 
congress of March 3, 188.").) making it a 
crime for one Indian to commit murder up- 
on another Indian, upon an Indian reserva- 
tion situated wholly within the limits of a 
state of the Union, and making such Indian 
so committing the crime of murder within 
and upon such Indian reservation 'subject 
to the same laws,' and subject to be 'tried 
in the same courts, and in the same manner, 
and subject to the same penalties, as are all 
other persons' committing the crime of 
murder 'within the exclusive jurisdiction of 
the United States,' is a constitutional and 
valid law of the United States." "(G) 
Whether the courts of the United States 
have jurisdiction or authority to try and 
punish an Indian belonging to an Indian 
tribe, for committing the crime of murder 
upon another Indian belonging to the same 
Indian tribe, both sustaining the usual trib- 
al I'elations, said crime having been com- 
mitted upon an Indian reservation made 
and set apart for the use of the Indian 
tribe to which said Indians both belong." 

The indictment sets out in two counts 
that Kagama, alias Pactah Billy, an In- 
dian, murdered lyouse, alias Ike, another 
Indian, at Humboldt county, in the state of 
California, within the limits of the Hoopa 
"S'alley reservation, and it charges Maha- 
waha. alias Ben, also an Indian, with aid- 
ing and abetting in the murder. 

The law referred to in the certificate is 
the last section of the Indian appropriation 
act of that year, and is as follows: 

"See. 9. That immediately upon and after 
the date of the passfige of this act all In- 
dians committing against the person or 
property of another Indian or other person 



any of the following crimes, namely, mur- 
der, manslaughter, rape, assault with intent 
to kill, arson, burglary, and larceny, within 
any territory of the United States, and ei- 
ther within or without the Indian reserva- 
tion, shall be subject therefor to the laws of 
said territory relating to said crimes, and 
shall be tried therefor in the same courts, 
and in the same manner, and shall be sub- 
ject to the same penalties, as are all other 
persons charged with the commission of the 
said crimes respectively; and said courts 
are hereby given jurisdiction in all such 
cases; and all such Indians committing any 
of the above crimes against the person or 
property of another Indian or other person, 
within the boundaries of any state of the Unit- 
ed States, and within the limits of any In- 
dian reservation, shall be subject to the same 
laws, tried in the same courts, and in the same 
manner, and subject to the same penalties, as 
are all other persons committing any of the 
above crimes within the exclusive jurisdiction 
of the United States." 

The above enactment is clearly separable 
into two distinct definitions of the condi- 
tions under which Indians may be punished 
for the same crimes as defined by the com- 
mon law. The first of these is where the 
offense is committed within the limits of a 
territorial government, whether on or off an 
Indian reservation. In this class of cases 
the Indian charged with the crime shall 
be judged by the laws of the territory on 
that subject, and tried by its courts. TTiis 
proposition itself is new in legislation of 
congress, which has heretofore only under- 
taken to punish an Indian who sustains the 
usual relation to his tribe, and who commits 
the offense in the Indian country, or on an 
Indian reservation, in exceptional cases; as 
where the offense was against the person or 
property of a white man, or was some viola- 
tion of the trade and intercourse regulations 
imposed by congress on the Indian tribes. 
It is new, bec*ause it now proposes to pun- 
ish these offenses when they are committed 
by one Indian on the person or property of 
another. The second is where the offense is 
committed by one Indian against the per- 
son or property of another, Avithin the lim- 
its of a state of the Union, but on an Indian 
reservation. In this case, of which the 
state and its tribunals would have jurisdic- 
tion if the offense was committed by a white 
man outside an Indian reservation, the 
courts of the United States are to exercise 
jurisdiction as if the oft'ense had been com- 
mitted at some place within the exclusive 
jurisdiction of the United States. The first 
clause subjects all Indians, guilty of these 
crimes committed Avithin the limits of a ter- 
ritory, to the laws of that territory, and to 
its courts for- trial. The second, which ap- 
plies solely to offenses by Indians which 
are committed within the limits of a state 
and the limits of a reservation, subjects the 
oJfenders to the laws of the United States 



EXCLUSIVE AND CONCURRENT POWERS. 



ai 



passed for the government of places under 
the exclusive jurisdiction of those laws, and 
to trial by the courts of the United States. 
This is a still further advance, as asserting 
this jurisdiction over the Indians within the 
limits of the states of the Union. 

Although the offense charged in this indict- 
ment was committed within a state, and not 
within a territory, the considerations which 
are necessary to a solution of the problem in 
regard to the one must in a large degree af- 
fect the other. The constitution of the Unit- 
ed States is almost silent in regard to the re- 
lations of the government which Avas estab- 
lished by it to the numerous tribes of Indians 
within its borders. In declaring the basis on 
which representation in the lower branch of 
the congress and direct taxation should be ap- 
portioned, it Avas fixed tnat it should be ac- 
cording to numbers, excluding Indians not 
taxed, which, of course, excluded nearly all 
of that race; but which meant that if there 
were such within a state as were taxed to 
support the government, they should be count- 
ed for representation, and in the computation 
for direct taxes levied by the United States. 
This expression, "excluding Indians not tax- 
ed," is found in the fourteenth amendment, 
where it deals with the same subject under 
the new conditions produced by the emanci- 
pation of the slaves. Neither of these shed 
much light on the power of congress over the 
Indians in their existence as tribes distinct 
from the ordinary citizens of a state or teiTi- 
tory. 

The mention of Indians in the constitution 
which has received most attention is that 
found in the clause which gives congress i 
"power to regulate commerce with foreign 
nations, and among the several states, and 
with the Indian tribes." This clause is re- 
lied on in the argument in the present case, 
the proposition being that the statute under 
consideration is a regulation of commerce 
with the Indian tribes. But we think it 
would be a very strained construction of this 
clause that a system of criminal laws for In- 
dians living peaceably in their reservations, 
which left out the entire code of trade and in- 
tercourse laws justly enacted under that pro- 
vision, and established punishments for the 
common-law crimes of murder, manslaughtei-, 
arson, burglary, larceny, and the like, with- 
out any reference to their relation to any kind 
of commerce, was authorized by the grant of 
power to regulate commerce with the Indian 
tribes. While we are not able to see in either 
of these clauses of the constitution and its 
amendments any delegation of power to en- 
act a code of criminal law for the punishment 
of the worst class of crimes known to civilized 
life when committed by Indians, there is a sug- 
gestion in the manner in which the Indian tribes 
are introduced into that clause which may 
have a bearing on the subject before us. The 
commerce with foreign nations is distinctly 
stated as submitted to the control of congress. 
Wei-e the Indian tribes foreign nations? If 



so, they came within the first of the three 
classes of commerce mentioned, and did not 
need to be repeated as Indian tribes. Were 
they nations, in the minds of the framers of 
the constitution? If so, the natural phi-ase 
would have been "foreign nations and Indian 
nations," or, in the terseness of language uni- 
formly used by the framers of tbe instrament, 
it would naturally have been "foreign and 
Indian nations." And so in the case of Cher- 
okee Nation v. Georgia, brought in the su- 
preme court of the United States, under the 
declaration that the judicial power extends 
to suits between a state and foreign states, 
and giving to the supreme court original ju- 
risdiction where a state is a party,, it was con- 
ceded that Georgia as a state came within 
the clause, but held that the Cherokees were 
not a state or nation, within the meaning of 
the constitution, so as to be able to maintain 
the suit. 5 Pet. 20. 

But these Indians are within the geograph- 
ical limits of the United States. The soil and 
the people within these limits are under the 
political control of the government of the 
United States, or of the states of the Union. 
There exists within the broad domain of sov- 
ereignty but these two. There may be cities, 
counties, and other organized bodies, with 
limited legislative functions, but they are all 
derived from, or exist in, subordination to one 
or the other of these. The territorial govern- 
ments owe all their powers to the statutes of 
the United States conferring on them the 
powers which tliej^ exercise, and which are 
liable to be withdrawn, modified, or repealed 
at any time by congress. What authority the 
state governments may have to enact crim- 
inal laws for the Indians will be presently 
considered. But this power of congress to 
organize territorial governments, and make 
laws for their inhabitants, arises, not so much 
from the clause in the constitution in regard 
to disposing of and making rules and regula- 
tions concerning the territory and other prop- 
erty of the United States, as from the own- 
ership of the country in Avhich the territories 
are, and the right of exclusive sovereignty 
which must exist in the national government, 
and can be found noAvhere else. Murphy v. 
Ramsey, 114 U. S. 15, 44, 5 Sup. Ct. 747. 

In the case of American Ins. Co. v. Canter, 
1 Pet. 542, in which the condition of the peo- 
ple of Elorida, then under a territorial govern- 
ment, Avas under consideration, Marshall, C. 
J., said: "Perhaps the poAver of governing a 
territoi-y belonging to the United States Avhich 
has not, by becoming a state, acquired the 
means of self-gOA'ernment, may result neces- 
sarily from the fact that it is not within the 
jurisdiction of any particular state, and is 
Avithin the poAver and jurisdiction of the 
United States. The right to goA'ern may be 
the inevitable consequence of the right to ac- 
quire territory. WhicheA'er may be the source 
whence the poAA-er is derived, the possession 
of it is unquestionable." 

In the case of U. S. v. Rogers, 4 Hoav. 572, 



82 



THE POWERS OF CONGRESS. 



where a white man pleaded in abatement to 
an indictment for murder, committed in the 
country of the Cherokee Indians, that he 
had been adopted by and become a member 
of the Cherokee tribe, Chief Justice Taney 
said: "The country in which the crime is 
charged to have been committed is a part 
of the territory of the United States, and not 
witliin the limits of any particular state. 
It is true it is occupied by the Cherokee 
Indians, but it has been assigned to them 
by the United States as a place of domicile 
for the tribe, and they hold with the assent 
of the United States, and under their author- 
ity." After referring to the policy of the 
European nations and the United States in 
asserting dominion over all the countiy dis- 
covered by them, and the justice of this 
course, he adds: "But had it been other- 
wise, and were the right and propriety of 
exercising this power now open to ques-tion, 
yet it is a question for the law-making and 
political departments of the government, and 
not for the judicial. It is our duty to ex- 
pound and execute the law as we find it, 
and we think it too firmly and clearly estab- 
lished to admit of dispute, that the Indian 
tribes, residing within the territorial limits 
of the United States, are subject to their 
authority, and when the country occupied 
by one of them is not within the limits of 
one of the states, congress may by law pun- 
ish any offense committed there, no matter 
whether the offender be a white man or an 
Indian." 

The Indian reservation in the case before 
us is land bought by the United States from 
Mexico by the treaty of Guadaloupe Hidal- 
go, and the whole of California, with the 
allegiance of its inhabitants, many of whom 
were Indians, was transferred by that ti'eaty 
to the United States. The relation of the 
Indian tribes living Avithin the borders of 
the United States, both before and since the 
Revolution, to the people of the United 
States, has always been an anomalous one, 
and of a complex character. Following the 
policy of the European governments in the 
discovery of America, towards the Indians 
who were found here, the colonies before the 
Revolution, and the states and the United 
States since, have recognized in the Indians 
a possessory right to the soil over which 
they roamed and hunted and established oc- 
casional villages. But they asserted an ulti- 
mate title in the land itself, by which the 
Indian tribes were forbidden to sell or trans- 
fer it to other nations or peoples without the 
consent of this paramount authority. When 
a tribe wished to dispose of its land, or any 
part of it, or the state or the United States 
wished to purchase it, a treaty with the 
tribe was the only mode in which this could 
be done. The United States recognized no 
right in private persons, or in other nations, 
to make such a purchase by treaty or other- 
wise. With the Indians themselves these re- 
lations are equally difficult to define. They 



were, and always have been, regarded as 
having a semi-independent position when 
they preserved their tribal relations; not as 
states, not as nations, not as possessed of 
the full attributes of sovereignty, but as a 
separate people, with the power of regulat- 
ing their internal and social relations, and 
thus far not brought under the laws of the 
Union or of the state within whose limits 
they resided. 

Perhaps the best statement of their posi- 
tion is found in the two opinions of this 
court by Chief Justice Marshall in the case 
of Cherokee Nation v. Georgia, 5 Pet. 1, 
and in the case of Worcester v. Georgia, 6 
Pet. 530. These opinions are exhaustive; and 
in the separate opinion of Mr. .lustice Bald- 
win, in the former, is a very valuable re- 
sume of the treaties and statutes concerning 
the Indian tribes previous to and during the 
confederation. In the first of the above 
cases it was held that these tribes were nei- 
ther states nor nations, had only some of 
the attributes of sovereignty, and could not 
be so far x-ecognized in that capacity as to 
sustain a suit in the supreme court of the 
United States. In the second case it was 
said that they were not subject to the juris- 
diction asserted over them by the state of 
Georgia, which, because they were within 
its limits, where they had been for ages, had 
attempted to extend her laws and the juris- 
diction of her courts over them. In the 
opinions in these cases they are spoken of as 
"Avards of the nation;" "pupils;" as local de- 
pendent communities. In this spirit the 
United States has conducted its relations to 
them from its organization to this time. But, 
after an experience of a hundred years of 
the treaty-making system of government, 
congress has determined upon a new depar- 
ture, — to govern them by acts of congress. 
This is seen in the act of March 3. 1871, em- 
bodied in section 2079 of the Revised Statutes: 
"No Indian nation or tribe, within the teiTi- 
toiy of the United States, shall be acknowledg- 
ed or recognized as an independent nation, 
tribe, or power, with whom the United States 
may contract by treaty; but no obligation of 
any treaty lawfully made, and ratified with 
any such Indian nation or tribe prior to 
March 3, 1871, shall be hereby invalidated 
or impaired." 

The Case of Crow Dog. 109 U. S. 5.5fi, 3 
Sup. Ct. 396, in which an agreement with the 
Sioux Indians, ratified by an act of congress. 
was supposed to extend over them the laws 
of the ITnited States and the jurisdiction of 
its conrts. covering murder and other grave 
crimes, shows the purpose of congress in 
this new departure. The decision in that 
case admits that if the intention of con- 
gress had been to punish, by the United 
States courts, the murder of one Indian by 
another, the law would have been valid. But 
the court could not see, in the agreement 
with the Indians sanctioned by congress, a 
purpose to repeal section 2146 of the Re- 



EXCLUSIVE AND CONCUKRENT POWEllS. 



m 



vised Statutes, which expressly excludes 
from that jurisdiction the case of a crime 
committed by one Indian against another in 
the Indian country. The passage of the act 
now under consideration was designed to re- 
move that objection, and to go furtlier bj' in- 
cluding such crimes on reservations lying 
within a state. Is this latter fact a fatal ob- 
jection to the law? The statute itself con- 
tains no express limitation upon the powers 
of a state, or the jurisdiction of its courts. 
If there be any limitation in either if these, 
it grows out of the implication arising from 
the fact that congress has defined a crime 
committed within the state, and made it pun- 
ishable in the courts of the United States. 
But congress has done this, and can do it, 
Avith regard to all offenses relating to mat- 
ters to which the federal authority extends. 
Does that authority extend to this caseV 

It will be seen at once that the nature of 
the offense (murder) is one which in most 
all cases of its commission is pimishable by 
the laws of the states, and within the juris- 
diction of their courts. The distinction is 
claimed to be that the offense under the stat- 
ute is committed by an Indian, that it is 
committed on a. reservation set apart within 
the state for residence of the tribe of In- 
dians by the United States, and the fair in- 
ference is that the offending Indian shall be- 
long to that or some other tribe. It does not 
interfere with the process of the state courts 
within the reservation, nor Math the opera- 
tion of state laws upon Avhite people found 
there. Its effect is confined to the acts of 
an Indian of some tribe, of a criminal char- 
acter, committed within the limits of the 
reservation. It seems to us that this is 
within the competency of congress. These 
Indian tribes are the wards of the nation. 
They are communities dependent on the 
United States,— dependent largely for their 
daily food; dependent for their political 
rights. They owe no allegiance to the states, 
and receive from them no protection. Be- 
cause of the local ill feeling, the people of 
the states where they are found are often 
their deadliest enemies. From their very 
weakness and helplessness.- so largely due to 
the course of dealing of the federal govern- 

SMITH.CONST. LAW — 3 



ment with them, and the treaties in which it 
has been promised, there arises the duty of 
protection, and with it the power. This has 
always been recognized by the executive, 
and by congress, and by this court, when- 
ever the question has arisen. 

In the case of Worcester v. Georgia, 6 Pet. 
515, it was held that, though the Indians had 
by treaty sold their land within that state, 
and agreed to remove away, which they had 
failed to do, the state could not, while they 
remained on those lands, extend its laws, 
criminal and civil, over the tribes; that the 
duty and power to compel their removal was 
in the United States, and the tribe was un- 
der their protection, and could not be sub- 
jected to the laws of the state, and the pro- 
cess of its courts. 

The same thing was decided in the case of 
Fellows V. Blacksmith, 19 How. 3«6. In this 
case, also, the Indians had sold their lands 
under supervision of the states of Massa- 
chusetts and of New York, and had agreed 
to remove within a given time. When the 
time came a suit to recover some of the land 
was brought in the supreme court of New 
York, which gave judgment for the plaintiff. 
But this court held, on wi'it of error, that 
the state could not enforce this removal, but 
the duty and the power to do so was in the 
United States. See, also, the cases of Kan- 
sas Indians, 5 Wall. 737; New Y''ork Indians, 
Id. 761. 

The power of the general government over 
these remnants of a race once powerful, now 
weak and diminished in numbers, is neces- 
sary to their pi'otection. as well as tQ the 
safety of those among whom they dwell. It 
must exist in that government, because it 
never has existed anywhere else; because 
the theater of its exercise is within the geo- 
graphical limits of the United States; be- 
cause it has never been denied; and because 
it alone can enforce its laws on all the tribes. 

We answer the questions propounded to 
us: that the ninth section of the act of 
March 23, 1885, is a valid law in both its 
branches, and that the circuit court of the 
United States for the district of California 
has jurisdiction of the offense charged in the 
indictment in this case. 



34 



THE POWERS OF CONGRESS. 



WILLAMETTE IRON BRIDGE CO. v, 
HATCH et al. 

(8 Sup. Ct. 811, 125 U. S. 1.) 

Supreme Court of the Uuited States. March 
19, 1888. 

Appeal from the circuit court of tlie Unit- 
ed States for tlie district of Oregon. 

Iiufus Mallory and Jolni Mullan. for ap- 
pellants. J. N. Dolph, for appellees. 

BRADLEY, J. This is a bill of review 
filed by the appellants, a corporation of Ore- 
gon, to obtain the reversal of a decree made 
by the court below against them in favor of 
Hatch and Lownsdale, the appellees. The 
case is, shortly, this: On the 18th of Oc- 
tober, 1878, the legislature of Oregon passed 
an act entitled "An act to authorize the 
construction of a bridge on the Willamette 
river, between the city of Portland and the 
citj- of East Portland, in Multnomah county, 
state of Oregon;" by which it was enacted 
as follows, to-wit: "Be it enacted," etc., 
"that it shall be lawful for the Portland 
Bridge Company, a corporation duly incor- 
porated under and in conformity with the 
laws of the state of Oregon, or its assigns, 
and that said corporation or its assigns be 
and are hereby authorized and empowered 
to construct, build, maintain, use, or cause 
to be constructed, built, and maintained or 
used, a bridge across the Willamette river, 
between I'ortland and East Portland, in 
Multnomah county, state of Oregon, for any 
and all purposes of travel or commerce; 
said bridge to be erected at any time within 
six years after the passage and approval of 
this act. at such point or location on the 
banks of said river, on and along any of the 
streets of either of said cities of Portland 
and East Portland as may be selected or de- 
termined on by said corporation or its as- 
signs, on or above Morrison street of said 
city of Portland and M street of said city 
of East I'ortland; the same to be deemed 
a lawful structure: provided, that there shall 
be placed and maintained in said l»ridge a 
good and suthcient draw of not less than one 
hundred feet in the clear in width of a pas- 
sage-way, and so constructed and main- 
tained as not to injuriously impede and ob- 
struct the free navigation of said river, but 
so as to allow the easy and reasonable pas- 
sage of vessels through said bridge: and 
provided, that the approaches on the Port- 
land side to said bridge shall conform to the 
present grade of Front street in said city of 
Portland." In the month of July. 1880. the 
appellants, the Willamette Iron Bridge Com- 
pany, claiming to be assignees of the Port- 
land Bridge Company, and to act under and 
by authoiity of said law, began the construc- 
tion of a bridge across the Willamette river, 
from the foot of :Morrison street, in the city 
of Portland, and proceeded in the work so 
far as to erect piers on the bed of the river, 
with a draw-pier in the channel, on which a 



pivot-draw was to be placed, with a clear 
passage-way on each side, when open, of 
100 feet in width,— or, as the appellants al- 
lege, lO.j feet in width. On the 3d of Janu- 
ary, 1881. while the appellants were thus en- 
gaged in erecting the bridge. Hatch and 
Lownsdale filed a bill in the circuit court of 
the United States for an injunction to re- 
strain the appellants from further proceed- 
ing with the work, and to compel them to 
abate and remove the structures already 
placed in the river. This bill described the 
complainants therein as citizens of the Unit- 
ed States, residing at Portland, in the state 
of (Jregon, and the defendants as a eoiiiora- 
tion org-anized under the laws of that state, 
having its otfice and principal place of busi- 
ness at Portland, and alleged that the Wil- 
lamette river is a known public river of the 
United States, situate within the state of 
Oregon, navigated by licensed and enrolled 
and registered sea-going vessels engaged in 
commerce with foreign nations and with 
other states, upon the ocean, and by way of 
the Columbia river,— also a known public 
and navigable river of the United States,— 
from its confiuence with the Columbia river 
to the docks and wharves of the port of Port- 
land, and that- up to and beyond the 
wharves and warehouses of the complain- 
ants. Hatch and Lownsdale, it is within the 
ebb and flow of the ocean tides. That, by 
the act of congress of February 14, 1859, ad- 
mitting the state of Oregon into the Union, 
it is declared "that all the navigable waters 
of said state shall be common highways, 
and forever free, as well to the inhabitants 
of said state as to all other citizens of the 
United States, without any tax, duty, im- 
post, or toll therefor." 11 St. 8S3. That 
congress has established a port of entry at 
the city of Portland, on the Willamette 
river, and has required vessels which navi- 
gate it to be enrolled and licensed, etc., and 
has frequently directed the improvement of 
the navigation of the said river, and appro- 
priated money for that purpose; and by an 
act approved February 2, 1870, giving con- 
sent to the erection of another bridge across 
said river from Portland to East Portland, 
asserted the powers of the Unitetl States to 
regulate commerce upon said river, and to 
prevent obstruction to the navigation of the 
same, and in said act declared: "But until 
the secretary of war approves the plan and 
location of said bridge, and notifies the said 
corporation, association, or company of the 
same, the bridge shall not be built or com- 
menced." The complainants further stated 
that Lownsdale was the owner and Hatch 
the lessee of a certain wharf and warehouses 
in Portland, situated about 750 feet above the 
proposed bridge, heretofore accessible to and 
used by sea-going vessels and others; and 
that Hatch is the owner of a steam tow-boat, 
used for towing vessels up and down the 
river to and from the said wharves and ware- 
houses and others in the city; that vessels 



ENUMERATED POWERS OF CONGRESS. 



of 2,000 tons liave been in the habit of navi- 
ijatiug the river for a mile above the site of 
the proix)sed bridge; and that the said river 
ought to remain free and unobstructed. But 
they charge that tlie bridge and piers will be 
a serious obstruction to this commerce; that 
the passage-ways will not be sufficient for 
sea-going vessels, with their tugs; that the 
bridge is being constructed diagonally, and 
not at right angles, to the current of the 
river; that it will arrest and pile up the float- 
ing ice and timber in high stages of water in 
such a way as to obstruct the passage of ves- 
sels; and in various other particulars stated 
in the bill it is charged that the bridge will 
be a serious obstruction to the navigation of 
the river. The complainants contended that 
the act of the legislature authorizing the 
bridge contravenes the laws of the United 
States declaring the river free, and was not 
passed with the consent of congress, and was 
n wrongful assumption of power on the part 
of the state; and alleged that the pretended 
assignment by the Portland Bridge Company 
to the defendants, the Willamette Iron 
Bridge Company, was not in good faith and 
was not authorized by the directors of the 
former; and stated various other matters of 
alleged irregularity and illegality on the part 
of the Portland Company and the defendants. 
They also stated that the bridge was not be- 
ing constructed in conformity with the re- 
quirements of the state law; that, by reason 
of its diagonal position across the river, the 
thread of the current formed an acute angle 
with the line of the bridge, and that the 
draAvs do not afford more than 87 feet of a 
passage-way for the passage of vessels; and 
that vessels will be unable to pass through 
said bridge for at least four months of the 
busiest shipping season of the year. The de- 
fendants in that case, the W^illamette Iron 
Bridge Company, filed an answer in which 
they admitted that they were building the 
bridge, and claimed to do so as assignees in 
good faith of the Portland Briflge Company, 
under and by virtue of the act of the legisla- 
ture before mentioned, but denied the allega- 
tions of the bill with regard to the injurious 
effects of the bridge upon the navigation of 
the river, and averred that they were com- 
plying in every i-espect with the state law. 
The cause being put at issue, and proofs be- 
ing taken, on the 22d of October, 1881, a de- 
cree was made in favor of the complainants 
foi- a pei-petual injunction against the build- 
ing of the bridge, and for an abatement of 
the portion already built. Tbe decision of the 
case was placed principally on the* ground 
that the bridge would be, and that the piers 
were, an obstruction to the navigation of the 
river, contrary to the act of congress passed 
in IS-^O, admitting Oregon into the Union, and 
declaring "that all the navigable waters of the 
said state shall be common highways, and for- 
ever free, as well to the inhabitants of said 
state as to all other citizens of the United 
States, without any tax, duty, impost, or toll 



therefor;" and that, without the consent of 
congress, a state law was not sufficient au- 
thority for the erection of such a structure; 
and, even if it was, the bridge did not con- 
form to the requirements of the state law. 
See Hatch v. Bridge Co., 7 Sawy. 127, 141, 6 
Fed. 326, 780. i The defendants took an ap- 
peal, which was not prosecuted; but after 
the decision of this court in the case of Esca- 
naba Co. v. Chicago, 107 U. S. 678, 2 Sup. 
Ct. 18.5, they filed the present bill of review 
for the reversal of the decree. The reasons 
assigned for a reversal are, among others, 
that the court erred in holding and decreeing 
as follows, to-wit: (1) That the bridge, where 
and as being constructed, was a serious ob- 
struction to the navigation of the Willamette 
river, contrary to the act of congress of Feb- 
ruary 14, 1859, admitting the state of Oregon 
into the Union, which declares that all the 
navigable waters of the state shall be com- 
mon highways, and forever free to all citi- 
zens of the United States; (2) that the said 
court, under section 1 of the act of March 3, 
1875, giving it jurisdiction of a suit arising 
under an act of congress, has authority to re- 
strain i^arties from violating said act by ob- 
structing the navigation of any of said wa- 
ters, at the suit of any one injured thereby; 
(3) that the proposed bridge is and will be a 
nuisance and serious impediment to the navi- 
gation of said river; (4) that the legislature 
of the state of Oregon has not the power to 
say absolutely that a bridge may be built 
with only a draw of 100 feet; (5) that the 
Willamette I'"on Bridge Company, as the as- 
signee of the Portland Bridge Company, was 
not authorized by the act of the legislative 
assembl3^ of Oregon to construct the said 
bridge, because it would be a violation of the 
said act of congress of February 14, 1859, 
admitting the state of Oregon into the Union, 
and was and is, therefore, void; (6) that the 
defendant should be perpetually enjoined 
from constructing or proceeding with the con- 
struction of the said bridge; and (7) that the 
defendant should be required to abate and re- 
move out of said river all piers, foundations, 
etc., which it has placed or constructed there- 
in. This bill was demurred to, and the court 
affirmed the decree in the original suit and 
dismissed the bill of review. Bridge Co. v. 
Hatch, 9 Sawy. 643, 19 Fed. 347. The present 
appeal is taken fi'om this decree. 

On a pure bill of review, like the one in this 
case, nothing will avail for a reversal of the 
decree but errors of law apparent on the rec- 
ord. Whiting V. Bank, 13 Pet. 6; Putnam v. 
Day, 22 Wall. 60; Buffington v. Harvey, 95 
U. S. 99; Thompson v. Maxwell, Id. 397; 
Beard v. Burts, Id. 434; Shelton v. Van 
Kleeck, 106 U. S. 532, 1 Sup. Ct. 491; 
Nickle v. Stewart, 111 U. S. 776, 4 Sup Ct. 
700. Does any such error appear in the pres- 
ent case? The court below has decided in 
the negative. We are called upon to deter- 

1 See, also, 27 Fed. 673. 



36 



THE POWERS OF CONGRESS. 



mine whether that decision was correct. It 
must be assumed that the questions of fact at 
issue between the parties were decided cor- 
rectly by the court upon its view of tlie law 
applicable to the case. But the important 
question is, was its view of the law correct? 
The parties in the cause, both plaintiffs and 
defendants, were citizens of the state of Ore- 
gon. The court, therefore, must necessarily 
have held, — as we know from its opinion that 
it did hold,— that the case was one arising un- 
der the constitution or laws of the United 
States. The gravamen of the bill was the ob- 
struction of the navigation of the Willamette 
river by the defendants, by the erection of the 
bridge which they were engaged in building. 
The defendants pleaded the authority of the 
state legislature for the erection of the bridge. 
The court held that the work was not done 
in conformity with the requirements of the 
state law; but whether it were or not, it 
lacked the assent of congress, which assent 
the cornl held was necessary in view of that 
provision in the act of congress admitting Or- 
egon as a state, which has been referred to. 
The court held that this provision of the act 
was tantamount to a declaration that the nav- 
igation of the Willamette river should not be 
obstructed or interfered with, and that any 
such obstruction or interference, without the 
consent of congress, whether by state sanc- 
tion or not, was a violation of the act of con- 
gress; and that the obstruction complained of 
was in violation of said act; and this is the 
principal and important question in this case, 
namely, whether the erection of a bridge over 
the Willamette river at Portland was a viola- 
tion of said act of congress. If it was not, if 
it could not be, if the act did not apply to ob- 
structions of this kind, then the case did not 
arise under the constitution or laws of the 
United States, unless under some other law 
referred to in the bill. 

The power of congress to pass laws for the 
regulation of the navigation of public rivers, 
and to prevent any and all obstructions thei*e- 
in, is not questioned. But until it does pass 
some such law, there is no common law of 
the United States which prohibits obstruc- 
tions and nuisances in navigable rivers, un- 
less it be the maritime law, administered by 
the courts of admiralty and maritime jurisdic- 
tion. No precedent, however, exists for the 
enforcement of any such law; and if such 
law could be enforced, (i point which we do 
not undertake to decide,) it would not avail 
to sustain the bill in equity filed in the orig- 
inal case. There must be a direct statute of 
the United States in order to bring within the 
scox)e of its laws, as administered by the 
courts of law and equity, obstructions and 
nuisances in navigable streams within the 
states. Such obstructions and nuisances are 
offenses against the laws of the states within 
which the navigable waters lie, and may be 
indicted or prohibited as such; but they are 
not offenses against United States laws which 
do not exist; and none such exist except what 



are to be found on the statute book. Of 
course, where the litigant parties are citizens 
of different states, the circuit courts of the 
United States may take jurisdiction on that 
ground, but on no other. This is the result 
of so many cases, and expressions of opinion 
by this court, that it is almost superfluous to 
cite authorities on the subject. We refer to 
the following by way of illustration: Willson 
V. Creek Co., 2 Pet. 245; Pollard's Lessee v. 
Hagan, 3 How. 229; Passaic Bridge Cases, S 
Wall. 7S2; Oilman v. Philadelphia, Id. 724; 
Pound V. Turck. 95 U. S. 459; Escanaba Co. 
V. Chicago, 107 U. S. 678, 2 Sup. Ct. 185; 
Cardwell v. Bridge Co., 113 U. S. 205, 5 Sup. 
Ct. 423; Hamilton v. Railroad, 119 U. S. 280, 
7 Sup. Ct. 206; Huse v. Glover, 119 U. S. 543, 
7 Sup. Ct. 313; Sands v. Improvement Co., 
123 U. S. 288, 8 Sup. Ct. 113; Transportation 
Co. V. Parkersburg, 107 U. S. 691, 700, 2 Sup. 
Ct. 732. The usual case, of course, is that in 
which the acts complained of are clearly sup- 
ported by a state statute; but that really 
makes no dift"ereuce. Whether they are con- 
formable, or not conformable, to the state 
law relied on, is a state question, not a federal 
one. The failure of state functionaries to 
prosecute for breaches of the state law does 
not confer power upon United States func- 
tionaries to prosecute under a United States 
law, when there is no such law in existence. 

But, as we have stated, the court below 
held that the act of congress of 1859 was a 
law Avhich prohibited any obstructions or im- 
pediments to the navigation of the public riv- 
ers of Oregon, including that of the Willa- 
mette river. Was it such an act V Did it have 
such effect? The clause in question had its 
origin in the fourth article of the compact 
contained in the ordinance of the old congress 
for the government of the teiTitory north- 
west of the Ohio, adopted July 13, 1787; in 
which it was, among other things, declared 
that "the navigable waters leading into the 
Mississippi a^id St. Lawrence, and the can-y- 
ing places between the same, shall be com- 
mon highways and forever free, as well to 
the inhabitants of said territoi-y, as to the cit- 
izens of the United States, and those of any 
other states that may be admitted into the 
confederacy, without any tax, impost, or duty 
therefor." 1 St. 52. This court has held that 
when anj' new state was admitted into the 
Union from the Northwest TeiTitory, the ordi- 
nance in question ceased to have any opera- 
tive force in limiting its powers of legisla- 
tion as compared with those possessed by the 
original states. On the admission of any 
such new state, it at once became entitled to 
and possessed all the rights of dominion and 
sovereignty which belonged to them. See 
the cases of Pollard's Lessee v. Hagan, supra; 
Permoli v. First Municipality, 3 How. 589; 
Escanaba Co. v. Chicago; Cardwell v. Bridge 
Co.; Huse v. Glover,— qua supra. In admit- 
ting some of the new states, however, the 
clause in question has been inserted in the 
law, as it was in the case of Oregon, whether 



ENUMERATED POWERS OF CONGRESS. 



37 



the state was carved out of the ten-itory 
northwest of the Ohio, or not; and it has been 
supposed that in this new fomi of enactment 
it might be regarded as a regulation of com- 
merce, Avhicli congress has the right to im- 
pose. Pollard's Lessee v. Hagan, 3 How. 212, 
230. Conceding this to be the correct view, 
the question then arises, what is its fair con- 
struction? What regulation of commerce 
does it affect? Does it prohibit physical ob- 
structions and impediments to the navigation 
of the streams? Or does it prohibit only the 
imposition of duties for the use of the navi- 
gation, and any discrimination denying to 
citizens of other states the equal right to such 
use? This question has been before this 
court, and has been decided in favor of the 
latter construction. 

It is obvious that if the clause in question 
does prohibit physical obstructions and im- 
pediments in navigable waters, the state leg- 
islature itself, in a state where the clause is 
in force, would not have the power to cause 
or authorize such obstructions to be made 
without the consent of congress. But it is 
well settled that the legislatures of such 
states do have the same power to authorize 
the erection of bridges, dams, etc., in and 
upon the navigable waters wholly within 
their limits, as have the original states, in 
reference to which no such clause exists. It 
was so held in Pound v. Turck, 95 U. S. 459, 
in reference to a dam in the Chippewa river, 
in Wisconsin; in Cardwell v. Bridge Co., 113 
U. S. 205, 5 Sup. Ct. 423; in reference to a 
bridge without a draw, erected on the Amer- 
ican river, in California, which prevented 
steam-boats from going above it; and in 
Hamilton v. Railroad Co., 119 U. S. 280, 7 
Sup. Ct. 206, relating to railroad bridges in 
Louisiana, — in all which cases the clause in 
question was in force in the states where 
they arose, and in none of them was said 
clause held to restrain in any degree the full 
power of the state to , make, or cause to be 
made, the erections referred to, Avhich must 
have been more or less obstructions and im- 
pediments to the navigation of the streams 
on which they were placed. In Cardwell v. 
Bridge Co., the two alternate constructions 
of the clause above suggested were brought 
to the attention of the court, and, on consid- 
eration, it was held as follows: "Upon ma- 
ture and careful consideration which we 
liave given in this case to the language of 
the clause in the act admitting California, 
we are of opinion that, if we treat the clause 
as divisible into two provisions, they must 
'be construed together as having but^one ob- 
ject, namely, to insxu-e a highway equally 
open to all without preference to any, and 
unobstructed by duties or tolls, and thus 
prevent the use of the navigable streams 
"by private parties to the exclusion of the 
public, and the exaction of any toll for their 
navigation; and that the clause contemplat- 
ed no other restriction upon the power of 
the state in authorizing the construction of 



bridges over them, whenever such construc- 
tion would promote the convenience of the 
public." In Hamilton Railroad Co. it was 
said: "Until congress intervenes in such 
cases, and exercises its authority, the power 
of the state is plenary. When the state pro- 
vides for the form and character of the 
structure, its directions will control, except 
as against the action of congress, whether 
the bridge he with or without draws, and 
irrespective of its effect upon navigation;" 
and in the same case the construction given 
to the clause in question in Cardwell v. 
Bridge Co. was reiterated, namely, that it 
was intended to prevent any discrimination 
against citizens of other states in the use 
of navigable streams, and any tax or toll 
for their use. In Huse v. Glover, 119 U. S. 
543, 7 Sup. Ct. 313, where a portion of the 
Illinois river had been improved by the state 
of Illinois, by the erection of locks in the 
rivei", and a toll was charged for passing 
through the same, it was held that this was 
no encroachment upon the power of con- 
gress to regulate commerce, and that, while 
the ordinance of 1787 was no longer in force 
in Illinois, yet, if it were, the construction 
given to the clause in the Cardwell Case 
was approved, and the following observa- 
tion was made: "As thus construed the 
clause would prevent any exclusive wse of 
the navigable waters of the state,— a possi- 
ble farming out of the privilege of navigat- 
ing them to particular individuals, classes, 
or corporations, or by vessels of a particu- 
lar character." It was also held that the 
exaction of tolls for passage through the 
locks, as a compensation for the use of the 
artificial facilities constructed, was not an 
impost upon the navigation of the stream. 
The same views are held in the recent case 
of Sands v. Improvement Co., 123 U. S. 288, 
8 Sup. Ct. 113. 

It seems clear, therefore, that according to 
the construction given by this court to the 
clause in the act of congress relied upon by 
the court below, it does not refer to physical 
obstructions, but to political regulations 
which would hamper the freedom of com- 
merce. It is to be remembered that in its 
original form the clause embraced carrying 
places between the rivers as well as the 
rivers themselves; and it cannot be sup- 
posed that those carrying places were in- 
tended to be always kept up as such. No 
doubt that at the present time Some of 
them are covered by populous towns, or oc- 
cupied in some other way incompatible with 
their original use; and such a diversion of 
their use, in the progress of society, cannot 
but have been contemplated. What the peo- 
ple of the old states wished to secure was 
the free use of the streams and carrying 
places in the Northwest Territory, as fully as 
it might be enjoyed by the inhabitants of 
that territory themselves, without any im- 
post or discriminating burden. The clause 
in question cannot be regarded as establish- 



38 



THE POWERS OF COXGIIESS. 



iug the police power of the United States 
over the rivers of Oregon, or as giving to 
the federal courts the right to hear and de- 
termine, according to federal law, every 
complaint that may be made of an impedi- 
ment in, or an encroachment upon, the navi- 
gation of those rivers. We do not doubt 
that congress, if it saw fit, could thus as- 
sume the care of said streams, in the intei'- 
est of foreign and interstate commerce; we 
only say that, in our opinion, it has not 
done so by the clause in question. And al- 
though, until congress acts, the states have 
the plenary power supposed, yet. when con- 
gress chooses to act, it is not concluded by 
anything that the states, or that individuals, 
by its authority or acquiescence, have done, 
from assuming entire control of the matter, 
and abating any erections that may have 
been made, and preventing any others from 
being made, except in conformity with such 
I'egulations as it may impose. It is for this 
reason, namely, the ultimate (though yet un- 
exerted) power of congress over the whole 
subject-matter, that the consent of congress 
is so frequently asked to the erection of 
bridges over navigable streams. It might 
itself give original authority for the erection 
of such bridges when called for by the de- 
mauds of interstate commerce by land; but 
in many, perhaps the majority, of cases, its 
assent only is asked, and the primai-y au- 
thority is sought at the hands of the state. 
With regard to this very river, the Willa- 
mette, three acts of congress have been pass- 
ed in relation to the construction of bridges 
thert'on. to-wit, one approved February 2, 
1870, which gave consent to the corporation 
of the city of Tortland to erect a bridge 
from Portland to the east baiik of the river, 
not obstructing, impairing, or injuriously 
modifying its navigation, and first submit- 
ting the plans to the secretary of war; an- 
other, approved on the 22d of June, 1874, 
which authorized the county commissioners 
of jNIarion county, or said commissioners 
jointly with those of Polk county, to build 
a bridge across said river at Salem; a third 
act. approved June 2.3, 1874, which author- 
ized the Oregon iS: California Railroad Com- 
pany, alone, or jointly with the Oregon Cen- 
tral Railroad Company, to build a railroad 
bridge across said river at the city of Port- 
land, with a draw of not less than 100 feet 
in the clear on each side of the draw abut- 
ment, and so constructed as not to impede 
the navigation of the river, and allow the 
free passage of vessels through the bridge. 
These acts are special in their character, 
and do not involve the assumption by con- 
gress of general police power over the river. 
The argument of the appellees, that con- 
gress must be deemed to have assumed po- 
lice power over the Willamette river in con- 
sequence of having expended money in im- 
proving its navigation, and of having made 
Portland a port of entry, is not well found- 
ed. Such acts are not sufficient to establish 



the police power of the United States over 
the navigable sti-eams to which they relate. 
Of course, any interference with the opera- 
tions, constructions, or improvements made 
by the general goveniment, or any violation 
of a port law enacted by congress, would be 
an offense against the laws and authority of 
the United States, and an action or suit 
brought in consequence thereof would be 
one arising under the laws of the United 
States; but no such violation, or interfei*- 
ence is shown by the allegations of the bill 
in the original suit in this case, which sim- 
ply states the fact that improvements have 
been made in the river by the government, 
without stating where, and that Portland 
had been created a port of entry. In the 
case of Escanaba Co. v. Chicago, it was said: 
"As to the appropriations made by congress, 
no money has been expended on the im- 
provement of the Chicago river above the 
first bridge from the lake, known as 'Rush- 
Street Bridge.' No bridge, therefore, inter- 
feres with the navigation of any portion of 
the river which has been thus improved. 
But, if it were otherwise, it is not perceived 
how the improvement of the navigability of 
the stream can affect the ordinary means of 
crossing it by ferries and bridges." 107 U. 
S. 690, 2 Sup. Ct. 195. In the present case 
there is no allegation, if such an allegation 
would be material, that any improvements 
in the navigation of the Willamette river 
have been made by the government at any 
point above the site of the proposed bridge. 
As to the making of Portland a port of 
entry, the obsexTations of Mr. Justice Grier 
in the Passaic Bi'idge Cases, 3 Wall. 782, 793, 
App., are very apposite. Those cases were 
decided in September, 18.57, by dismissing 
the bills which were filed for injunctions 
against the erection of a railroad bridge 
across the Passaic river at Newark, New 
Jersey, and a plank-road bindge across the 
same river below Newark. The decrees 
were afiirmed here by an equally divided 
court, in December term, 1801. It being ur- 
ged, among other things, that Newark was a 
port of entry, and that the erection of these 
bridges, though under the authority of the 
state legislature, was in conflict with the act 
of congress establishing the port, Mr. Jus- 
tice Grier said: "Congress, by conferring 
the privilege of a port of entry upon a town 
or city, does not come in conflict with the 
police power of a state exercised in bridging 
her own rivers below such port. If the pow- 
er to make a town a port of entry includes 
the right to regulate the means by which its 
commerce is carried on, why does it not ex- 
tend to its turnpikes, railroads, and canals, 
— to land as well as water? Assuming the 
right (which I neither aftirm or deny) of con- 
gress to regulate bridges over navigable riv- 
ers below ports of entry, yet, not having 
done so, the courts cannot assume to them- 
selves such a power. There is no act of 
congress or rule of law Avhich courts could 



ENUMERATED POWERS OF CONGRESS. 



39 



apply to such a case." These views were 
adhered to by the same judge iu the subse- 
quent case of Gilman v. Philadelphia. The 
bridge which was the subject of controversy 
in that case was within the limits of the port 
of Philadelphia, which, by the act of 1799, 
included the citj' of Philadelphia, and by 
that of lSo-1 was extended northerly to Gun- 
ner's run. See 3 Wall. 718. That case arose 
soon after the Passaic Bridge Cases, and, 
so far as interference with navigation was 
concerned, was identical in character with 
them; and Mr. Justice Grier, upon the same 
grounds taken and asserted by him in those 
cases, dismissed the bill. The decree was 
affirmed in this court in December term, 
1865, by a vote of seven justices to three. 
Justices Clifford, Wayne, and Davis dissent- 
ing; so that Justice Grier's views were final- 
ly affirmed by a decided majority of the 
court. 

It is urged that in the Wheeling Bridge 
Case, 13 How. 518, this court decided the 
bridge there complained of to be a nuisance, 
and decreed its prostration, or such increased 
elevation as to permit the tall chimneys of 
the Pittsburgh steamers to pass under it at 
high water. But in that case this court had 
original jurisdiction in consequence of a state 
being a party; and the complainant, the 
state of Pennsylvania, was entitled to in- 
voke, and the court had power to apply, any 
law applicable to the case, whether state 
law, federal law, or international law. The 
bridge had been authorized by the legisla- 
ture of Virginia, whose jurisdiction extend- 
ed across the whole river Ohio. But Vir- 
ginia, in consenting to the erection of Ken- 
tucky into a state, had entered into a com- 
pact with regard to the free navigation of 
the Ohio, 2 confirmed by the act of congress 
admitting Kentucky into the Union, which 
the court held to be violated by authorizing 
the bridge to be constructed in the manner 
it was; and the bridge, so constructed, in- 
juriously affected a supra-riparian state 
(Pennsylvania) bordering on the river, con- 
trary to international law. Mr. Justice 
Grier, in the Passaic Bridge Cases, disposes 
of the Wheeling Bridge Case as follows: 
"This legislation of Virginia being pleaded as 
a bar to further action of the court in the 
case, necessarily raised these questions: 
Could Virginia license or authorize a nui- 
sance on a public river, flowing, which rose 
in Pennsylvania, and passed along the bor- 
der of Virginia, and which, by compact be- 
tween the states, was declared to be 'free and 
common to all the citizens of the United 
States?' If Virginia could authori;?fe any ob- 
stiiiction at all to the channel navigation, she 
could stop it altogether, and divert the whole 
commerce of that great river from the state 
of Pennsylvania, and compel it to seek its 



2 See Mr. Stanton's argument. 18 How. 523; 
1 Bioren's Laws U. S. p. 675, art. 7. 



outlet by the railroads and other public im- 
provements of Virginia. If she had the sov- 
ereign right over this boundary river claimed 
by her, there would be no measure to her 
power. She would have the same right to 
stop its navigation altogether as to stop it 
ten days in a year. If the plea was admit- 
ted, Virginia could make Wheeling the head 
of navigation on the Ohio, and Kentucky 
might do the same at Louisville, having the 
same right over the whole river which Vir- 
ginia can claim. This plea, therefore, pre- 
sented not only a great question of interna- 
tional law, but whether rights secured to the 
people of the United States, by compact 
made before the constitution, were held at 
the mercy or caprice of eA^ery or any of the 
states to which the river was a boundary. 
The decision of the court denied this right. 
The plea being insufficient as a defense, of 
course the complainant was entitled to a de- 
cree prostrating the bridge, which had been 
erected pendente lite. But to mitigate the 
apparent hardship of such a decree, if ex- 
ecuted unconditionally, the court, in the ex- 
ercise of a merciful discretion, granted a 
stay of execution on condition that the bridge 
should be raised to a certain height, or have 
a draw put in it which would permit boats 
to pass at all stages of the navigation. From 
this modification of the decree no inference 
can be drawn that the courts of the United 
States claim authority to regulate bridges 
below ports of entry, and treat all state leg- 
islation in such cases as unconstitutional and 
void." "It is evident, from this statement," 
continues Justice Grier, "that the supreme 
court, in denying the right of Virginia to ex- 
ercise this absolute control over the Ohio 
rivei", and in deciding that, as a riparian pro- 
prietor, she was not entitled, either by the 
compact, or bj"^ constitutional law, to obstiaict 
the commerce of a supra-riparian state, 
had before them questions not involved in 
these cases, [the Passaic Bridge Cases,] and 
which cannot affect their decision. The 
Passaic river, though navigable for a few 
miles within the state of New .JerseJ^ and 
therefore a public river, belongs wholly to 
that state. It is no highway to other states; 
no commerce passes thereon from states be- 
i low the bridge to states above." 3 Wall. 792. 
This exposition of the Wheeling Bridge Case, 
by one who had taken a decided part in its 
discussion and determination, effectually dis- 
poses of it as a precedent for the jurisdic- 
tion of the circuit courts of the United 
States in matters pertaining to bridges erect- 
ed over navigable rivers, at least those erect- 
ed over rivers whose course is wholly with- 
in a single state. The Willamette river is 
one of that description. 

On the whole, our opinion is that the orig- 
inal suit in this case was not a suit arising 
under any law of the United States; and 
since, on such ground alone, the court below 
could have had jurisdiction of it, it fol- 



40 



THE POWERS OF CONGRESS. 



lows that the decree on the bill of review 
must be reversed, and the record remanded, 
with instructions to reverse the decree in the 
original suit, and to dismiss the bill filed 



therein, without prejudice to any other pro- 
ceeding which may be taken in relation to 
the erection of said bridge, not inconsistent 
with this opinion. 



ENUMERATED POWERS OF CONGRESS. 



41 



BOWMAN et al. v. CHICAGO & N. W. RY. 

CO.i 

(8 Sup. Ct. 689, 1062, 125 U. S. 465.) 

Supreme Court of the United States. March 
19, 1888. 

In error to the circuit court of the United 
States for the Nortlieru district of Illinois. 

This action was begun in the circuit court 
of the United States for the Northern district 
ef Illinois, June 15, 1SS6, on which day the 
plaintiffs filed their declaration, as follows: 
"George A. Bowman, a citizen of the state 
of Nebraska, and Fred. W^. Bowman, a citi- 
zen of the state of Iowa, copartners, doing 
Itusiness under the name, firm, and style of 
Bowman Bros., at the city of Marshalltown, 
.state of Iowa, plaintiff's in this suit, by 
Blum & Blum, their attorneys, complain of 
the Chicago and Northwestern Railway Com- 
pany, a citizen of the Northern district of the 
state of Illinois, having its principal office at 
the city of Chicago, in said state, defendant 
in this suit, of a plea of trespass on the case; 
for that, whereas, the defendant on May 
20, 1886, and for a long time previous there- 
to and thereafter, was possessed of and us- 
ing and operating a certain railway, and was 
a common carrier of goods and chattels 
thereon for hire, to-wit, from the citj^ of 
Chicago, in the state of Illinois, to the city 
of Council Bluffs, in the state of Iowa. That 
said defendant was at said time, and is now, 
a corporation existing under and by virtue 
of the laws of the state of Illinois, and that 
it was and is the duty of said defendant to 
carry from and to all stations upon its line 
of railway all freight tendered it for ship- 
ment. That upon May 20, 1886, the plain- 
tiff's offered to said defendant for shipment 
over its line of railway, and directed to them- 
selves at Marshalltown, Iowa, five thousand 
barrels of beer, which they had procured in 
the city of Chicago, to be shipped from said 
city to the city of Marshalltown, in the state 
of Iowa, which is a station lying and being 
on said defendant's line of railroad between 
said cities of Chicago and Council Bluffs, but 
the defendant then and there refused to re- 
ceive said beer, or any part thereof, for ship- 
ment, to the damage of the plaintiff's of ten 
thousand dollars, and therefore they bring 
their suit, etc. And for that the plaintiffs, 
neither of whom is an hotel keeper, a keep- 
er of a saloon, eating-house, grocery, or con- 
fectionery, on the 7th day of July, 1884, and 
upon several occasions thereafter, presented 
to the board of supervisors of Marshall coun- 
ty, Iowa, a certificate signed by a majority 
of the legal electors of Marshallk)wn, Mar- 
shall county, Iowa, whicln stated that said 
Fred. W. Bowman is a citizen of said coun- 
ty. That both of said plaintiffs possess a 
good moral character, and that they (said 
electors) believe said plaintiffs to be proper 
persons, and each of them to be a proper 

1 Dissenting opinion of Mr, Justice Harlan, 
omitted. 



person, to buy and sell intoxicating liquore 
for the purposes named in section 1526 of 
the Iowa Code. That at said time, and upon 
several occasions thereafter, they and each 
of them, the said plaintiff's, filed a bond in 
the sum of three thousand dollars with two 
sureties, which bond was approved by the 
auditor of said county, as is provided by sec- 
tion 1528 of the Code of Iowa. That there- 
upon said board of supervisors refused to 
grant such permission to either of said plain- 
tiff's, or to them jointly. And for that, 
whereas, the defendant on May 20th, 1886, 
and for a long time previous thereto and 
thereafter, was possessed of and using and 
operating a certain railroad, and was a com- 
mon carrier of goods and chattels thereon for 
hire, to-wit, from the city of Chicago, in the 
state of Illinois, to the city of Council Bluffs, 
in the state of Iowa. That said defendant 
is a corporation, existing under and by virtue 
of the laws of the state of Illinois. That 
it was the duty of the said defendant to car- 
ry from and to all stations upon its line of 
railway all freight that might be intrusted 
to it, and that it was the duty of said de- 
fendant to transport from said city of Chi- 
cago to said city of Marshalltown the five 
thousand barrels of beer hereinbefore and 
hereinafter mentioned, which plaintiffs re- 
quested it so to transport. That in the com- 
j mencement of May, 1886, the plaintiff's pur- 
! chased, at the city of Chicago, five thousand 
barrels of beer, at $6.50 per barrel; which 
I beer they intended to send to Marshalltown, 
Iowa, at which place and vicinity they could 
I have sold said beer at eight dollars per bar- 
j rel, as the defendant was then and there 
j informed. That on May 20, 1886, said plain- 
tiff's off'ered for shipment to said defendajit 
railway company said five thousand barrels 
of beer, directed to said plaintiffs, at the 
city of Marshalltown, in the state of Iowa; 
and requested said defendant to ship said 
beer over its road, with which request the 
defendant refused to comply, and declined 
to ship or receive said beer, or any part 
thereof, for shipment as aforesaid; the said 
defendant, by its duly-authorized agent, then 
and there stating that the said defendant 
company declined to receive said goods for 
shipment, and would continue to decline to 
.receive said goods, or any goods of like char- 
acter, for shipment into tliie state of Iowa. 
That on said day, to-wit, May 20, 1886, and 
for a long time theretofore and since, the 
plaintiff's were unable to purchase beer in 
the state of Iowa. That said plaintiff's, at 
said time, could procure no other means of 
transportation for said beer than said de- 
fendant, and that, by reason of the defend- 
ant's refusal to transport said beer, plain 
tiffs were compelled to sell said beer in the 
city of Chicago at $6.50 per barrel. That by 
reason of said refusal of said defendant to 
ship said beer plaintiff's have been damaged 
in the sum of ten thousand dollars, and there- 
fore they bring their suit," etc. To this 



42 



THE POWERS OF CONG HESS. 



declaration the defendant filed the follow- 
iuj? plea: "Now comes the said defendant, by 
W. C. Goudy, its attorney, and defends the 
wronj;: and injury, when," etc., "and says 
actio non," etc., "because it says that the 
beer in said five thousand barrels in the 
plaintiff's declaration, and in each count 
tliereof, mentioned, was at the several times 
in said declaration mentioned, and still is, 
iuluxicatins- liquor, within the meaning of 
the statute of loAva hereinafter set forth. 
That the city of Marshalltown in said dec- 
laration mentioned, is within the limits of 
the state of Iowa. That the said city of 
Chicago in the said declaration mentioned, 
is In the state of Illinois. That the said 
beer in said declaration mentioned, was of- 
fered to this defendant to be tmnsported 
from the state of Illinois to the state of 
Iowa. That heretofore, to-wit, ou the 5th 
day of April, A. D. 1881), the general assem- 
bly of the state of Iowa passed an act en- 
Titled 'An act amendatory of chapter 143 
of the Acts of the Twentieth General As- 
sembly, relating to intoxicating liquors, and 
providing for the more effectual suppression 
of the illegal sale and trausportiition of in- 
toxicating liquors and abatement of nui- 
sances," which act is chapter GG of the Laws 
of Iowa, parsed at the twenty-first general 
assembly of said state, and which is printed 
and published in the Laws of Iowa for the 
year lS8li, at page — ; to which act this 
defendant hereby refers, and makes the 
same a part of this plea. That in and by 
the tenthi section of said act it was and is 
provided as follows, to-wit: 'That section 
l.jo3 of the Code, as amended and substi- 
tuted by chapter 143 of the Acts of the 
Twentieth General Assembly, be, and the 
same is hereby, repealed, and the following 
enacted in lieu thereof: Sec. 1.353. If any 
express company, railway company, or any 
agent or person in the employ of any ex- 
press company or railway company, or if 
any common carrier, or any person in the 
employ of any common carrier, or any per- 
son, knowingly bring within this state for 
any person or persons or corporation, or 
shall knowingly transport or convey between 
points, or from one place to another, in this 
state, for any other person or persons or 
corporation, any intoxicating liquors, without 
first having been furnished a certificate froiu 
and under the seal of the county auditor of 
the county to which said liquor is to be 
transported, or is consigned for transporta- 
tion, or within which it is to be conveyed 
from place to place, certifying that the con- 
signee or person to whom said liquor is to 
be transported, conveyed, or delivered is 
authorized to sell such intoxicating liquors 
in such county, such company, coiijoration, 
or person so offending, and eacli of them, 
and any agent of such company, corporation, 
or person so offending, shall, upon conviction 
thereof, be fined in the sum of one hundred 
dollars for each offense, and pay costs of 



prosecution, and the costs shall include a 
reasonable attorney fee, to be assessed by 
the court, which shall be paid into the coun- 
ty fund, and stand committed to the county 
jail until such fine and costs of prosecution 
are paid. The offense herein defined shall 
be held to be complete, and shall be held 
to have been committed in any county of 
the state through or to which said intoxicating 
lifiuors are transported, or in which the same 
is unloaded for transportation, or in Avhich 
said liquors are conveyed from place to 
place or delivered. It shall be the duty of 
the several county aiiditors of this state to 
issue the certificate herein contemplated to 
any person having such permit, and the cer- 
tificate so issued shall be truly dated when 
issued, and shall specify the date at which 
the permit expires, as shoAA'u by the county 
records.' And the defendant avers that at 
the several times mentioned in said declara- 
tion, and each of them, the aforesaid section 
was the law of the state of Iowa in full 
force and wholly vmrepealed, and that the 
said plaintift's did not at any time furnish 
this defendant Avith a certificate from and 
under the seal of the county auditor of the 
county of Marshall, the same being the 
county in which said city of Marshalltown is 
located, and the county to which said beer 
was offered to be transported, certifying that 
the person for or to Avhom the said beer was 
to be transported, was authorized to sell in- 
toxicating li(iuors in said county of Mar- 
shall, nor was this defendant furnished with 
any such certificate by any person whatso- 
ever. And the defendant avers that it could 
not receive said beer for transportation in 
the manner named and specified in the plain- 
tiff's declaration without violating the law 
of the state of Iowa above specified, and 
without subjecting itself to the penalties pro- 
vided in said act; and that this defendant 
assigned, at the time the said beer was of- 
fered to it for transportation as aforesaid, 
as a reason why it could not receive the 
same, the aforesaid statute of Iowa, Avhich 
prohibited this defendant from receiving said 
beer to be transported into the state of 
Iowa, or from transporting the said beer in- 
to the state of Iowa. And this the said de- 
fendant is ready to verify. "Wherefore it 
prays judgment." etc. To this plea the plain- 
tift's filed a general demurrer, and for cause 
of demurrer assigned that the statute of 
Iowa referred to and set out in the plea was 
unconstitutional and void. The demm-rer 
was overruled, and judgment entered thei'eon 
against the plaintift's; to reverse which this 
Avrit of error is prosecuted. 

Louis J. Blum, for plaintiffs in error. "W. 
C. Goudy, A. J. Baker, and James E. Mon- 
roe, for defendant in error. 

Mr. .Tustice MATTHEWS, after stating 
the facts as above, delivered the opinion of 
the court. 

It is not denied that the declaration sets 



ENUMERATED POWERS OF CONGRESS. 



43 



out a good cause of action. It alleges that 
the defendant was possessed of and oper- 
ated a certain railway, by means of which 
it became and was a common carrier of 
goods and chattels thereon for hire, from 
the city of Chicago, in the state of Illinois, 
to the city of Council Bluffs, in the state of 
Iowa, and that, as such, it was its duty to 
carry from and to all stations upon its line 
of railway all goods and merchandise that 
might be intrusted to it for that purpose. 
This general duty was imposed upon it by 
the common law as adopted and prevailing 
in the states of Illinois and Iowa. The sin- 
gle question, therefore, presented upon the 
record, is whether the statute of the state 
of Iowa,, set out in the plea, constitutes a 
defense to the action. 

The section of the statute referred to, be- 
ing section 1553 of the Iowa Code, as amend- 
ed by the act of April 5, 1886, forbids any 
common carrier to bring within the state of 
Iowa, for any person or persons or corpora- 
tion, any intoxicating liquors from any other 
state or territory of the United States, with- 
out first having been furnished with a cer- 
tificate, under the seal of the county auditor 
of the county to which said liquor is to be 
transported, or is consigned for transporta- 
tion, certifying that the consignee or per- 
son to whom said liquor is to be transport- 
ed, couvej'ed, or delivered is authorized to 
sell intoxicating liquors in siich county. 
This statutory provision does not stand 
alone, and must be considered with refer- 
ence to the system of legislation of Avliich 
it forms a part. The act of April 5, 1886, 
in which it is contained, relates to the sale 
of intoxicating liquors within the state of 
Iowa, and is amendatory of chapter 143 of 
the Acts of the Twentieth General Assem- 
bly of that state, "relating to intoxicating 
liquors, and providing for the more effectual 
suppression of the illegal sale and transpoi'- 
tation of intoxicating liquors and abatement 
of nuisances." The original section 15.53 of 
the Iowa Code contains a similar provision 
in respect to common carriers. By section 
1.523 of the Code, the manufacture and sale 
of intoxicating liquors, except as thereinafter 
provided, is made unlawful, and the keeping 
of intoxicating liquor with intent to sell the 
same within the state, contrary to the pro- 
visions of the act, is prohibited; and the in- 
toxicating liquor so kept, together with the 
vessels in which it is contained, is declared 
to be a nuisance, to be forfeited and dealt 
with as thereinafter provided. Section 1524 
excepts from the operation of the law sales 
by the importer thereof of foreign intoxi- 
cating liquor, imported under the authority 
of the laws of the United States regarding 
the importation of such liquoi-s, and in ac- 
cordance with such laws, provided that the 
said liquor at the time of said sale by said 
importer remains in the original casks or 
packages in which it was by him imported, 
and in quantities of not less than the quan- 



tities in which the laws of the United States 
require such liqviors to be imported, and is 
sold by him in said original casks or pack- 
ages, and in said quantities only. The law 
also permits the manufacture in the state 
of liquors for the purpose of being sold, ac- 
cording to the provisions of the statute, to 
be used for mechanical, medicinal, culinary, 
or sacramental purposes; and for these pur- 
poses only any citizen of the state, except 
hotel keepers, keepers of saloons, eating- 
houses, grocery keepers, and confectioners, 
is permitted, within the county of his resi- 
dence, to buy and sell intoxicating liquors, 
provided he shall first obtain permission 
from the board of supervisors of the county 
in which such business is conducted. It also 
declares the building or erection of whatever 
kind, or the ground itself in or upon which 
intoxicating liquor is manufactured or sold, 
or kept with intent to sell, contrary to laAV, 
to be a nuisance, and that it may be abated 
as such. The original provisions of the Code 
(section 155.5) excluded from the definition 
of intoxicating liquors, beer, cider from ap- 
ples, and wine from grapes, currants, and 
other fruits grown in the state; but by an 
amendment that section was made to in- 
clude alcohol, ale, wine, beer, s])irituous, 
vinous, and malt liquors, and all intoxicat- 
ing liquors whatever. It thus appears that 
the provisions of the statute set out in the 
plea, prohibiting the transportation by a 
common carrier of intoxicating liquor from 
a point within any other state for delivery 
at a place Avithin the state of Iowa, is in- 
tended to more effectually carry out the 
general policy of the law of that state with 
respect to the suppression of the illegal 
manufacture and sale of intoxicating liquor 
Avithin the state as a nuisance. It may 
therefore fairly be said that the provision 
in question has been adopted by the state of 
loAva, not expressly for the purpose of regu- 
lating commerce betAveen its citizens and 
those of other states, but as subservient to 
the general design of protecting the health 
and morals of its people, and the peace and 
good order of the state, against the physical 
and moral evils resulting from the unre- 
stricted manufacture and sale Avithin the 
state of intoxicating liquors. 

We have had recent occasion to consider 
state legislation of this character in its rela- 
tion to the constitution of the United States. 
In the case of Mugler v. Kansas, 123 U. S. 
623, 8 Sup. Ct. 273, it AA^as said: "That legis- 
lation by a state prohibiting the manufac- 
ture, within her limits, of intoxicating liq- 
uors to be sold or bartered for general use 
as a beverage, does not necessarily infringe 
any right, privilege, or immunity secured bj^ 
the constitution of the United States is made 
clear by the decisions of this court rendered 
before and since the adoption of the 14th 
amendment. * * * These cases rest upon 
the acknoAvledged right of the states of the 
Union to control their purelj internal af- 



44 



THE POWERS OF CONGKESS. 



fairs, and in so doing, to protect the health, 
morals, and safety of their people by regula- 
tions that do not interfere with the execu- 
tion of the powers of the general govern- 
ment, or violate rights secured by the 
constitution of the United States." In the 
License Cases, 5 How. 504, the question was 
wliether certain statutes of Massachusetts, 
Rhode Island, and New Hampshire, relating 
to the sale of spirituous liquors, were re- 
pugnant to the constitution of the United 
States by reason of an alleged conflict be- 
tween them and the power of congress to 
regulate commerce with foreign countries 
and among the several states. The statutes 
of Massachu.setts and of Rhode Island con- 
sidered in those cases had reference to the 
sale within tho.se states, respectively, of in- 
toxicating liquor imported from foreign 
countries, but not sold or offered for sale 
Avitliin the state by the importer in original 
packages. The statute of New Hampshire, 
liowever. applied to intoxicating li(iuor im- 
ported from another state, and the decision 
in tliat case upheld its validity in reference 
to the disposition, by sale or otherwise, of 
the intoxicating liquor after it had been 
brought into the state. That judgment, 
tliei-efore. closely approached the question 
presented in this case. The justices all con- 
curred in the result, but there was not a 
majority which agreed upon auy specific 
ground for the conclusion, and it is neces- 
sary to compare the several opinions which 
were pronounced, in order to extract the 
propositions necessarily embraced in the 
judgment. Chief Justice Taney was of the 
opinion that congress had clearly the power 
to regulate such importation and sale, under 
the grant of power to regulate commerce 
among the several states; "yet, as congress 
has made no regulations on the subject," he 
said, "the traffic in the article may be law- 
fully regulated by the state as soon as it is 
lauded in its territory, and a tax imposed 
upon it, or a license required, or the sale 
altogether prohibited, according to the pol- 
icy which the state may suppose to be its 
interest or duty to pursue." Mr. Justice 
Catron and Mr. Justice Nelson agreed with 
the chief justice that the statute of NeAV 
Hampshire in question was a regulation of 
<-ommerce, but lawful, because not repug- 
nant to any actual exercise of the commer- 
cial power by congress. Mr. Justice McLean 
seemed to think that the power of congress 
ended with the importation, and that the 
sale of the article afti r it reached its des- 
tination was within the exclusive control of 
the state. He said: "If this tax had been 
laid on the property as an import into the 
state, the law would have been repugnant 
to the constitution. It Avould have been a 
regulation of commerce among the states, 
which has been exclusively given to con- 
gress. * * * B^it this barrel of gin, like 
all other property within the state of New 
Hampshire, was liable to taxation by the 



state. It comes under the general regula- 
tion, and cannot be sold without a license." 
Mr. Justice Daniel denied that the right of 
importation included the right to sell within 
the state, contrary to its laws. He impliedly 
admitted the exclusive power of congress to 
regulate importation, and maintained, as 
equally exclusive, the right of the state to 
regulate the matter of sale. Mr. Justice 
Woodl)ury concurred in the same distinction. 
He said (page G19): "It is manifest, also, 
whether as an abstract proposition or prac- 
tical measure, that a prohibition to import 
is one tiling, while a prohibition to sell with- 
out a license is another and entirely differ- 
ent." The first, he thought, was within the 
control of congress, the latter, within the 
exclusive jurisdiction of the state. He said: 
"The subject of buving and selling within 
a state is one as exclusively belonging to the 
power of the state over its internal trade as 
that to regulate foreign commerce is with 
the general government under the broadest 
construction of that power. * * * xiie 
idea, too, that a prohibition to sell would be 
tantamount to a prohibition to import, does 
not seem to me either logical or founded in 
fact. For, even under a prohibition to sell, 
a person could import, as he often does, for 
his own consumption, and that of his family 
and plantations; and also, if a merchant ex- 
tensively engaged in commerce, often does 
import articles with no view of selling them 
here, but of storing them for a higher and 
more suitable market in another state or 
abroad." He also said (page (52.5): "But this 
license is a regulation neither of domestic 
commerce between the states, nor of for- 
eign commerce. It does not operate on ei- 
ther, or the imports of either, until they 
have entered the state, and become compo- 
nent parts of its property. Then it has by 
the constitution tlie exclusive power to reg- 
ulate its own internal commerce and busi- 
ness in such articles, and bind all residents, 
citizens or not, by its regulations, • if they 
ask its protection and privileges; and con- 
gress, instead of being opposed and thwart- 
ed by regulations as to this, can no more 
interfere in it than the states can interfere 
in regulation of foreign commerce." Mr. 
Justice Grier concurred mainly in the opin- 
ion delivered by Mr. Justice McLean, and 
did not consider that the question of the 
exclusiveness of the power of congress to 
regulate commerce was necessarily connect- 
ed with the decision of the point that the 
states hud a right to prohibit the sale and 
consumption of an article of commerce with- 
in their limits, which they believed to be 
pernicious in its eft'ects, and the cause of 
pauperism, disease, and crime. 

From a, review of all the opinions, the fol- 
lowing conclusions are to be deduced as the 
result of the judgments in those cases: (1) 
All the justices concurred in the proposi- 
tion tliat tlie statutes in question were not 
made void by the mere existence of the 



ENUMERATED POWERS OF CONGRESS. 



45 



power to regulate commerce with foreign 
nations, and among the states, delegated to 
congress by the constitution. (2) Tliey all 
concurred in the proposition that tliere was 
no legislation by congress in pursuance of 
that power with which these statutes were 
in conflict. (3) Some, including the chief 
justice, held that the matter of the impor- 
tation and sale of articles of commerce was 
subject to the exclusive regulation of con- 
gress, whenever it chose to exert its power, 
and that any statute of the state on the 
same subject in conflict with such positive 
provisions of law enacted by congress would 
be void. (4) Others maintained the view 
that the power of congress to regulate com- 
merce did not extend to or include the sub- 
ject of the sale of such articles of commerce 
after they had been introduced into a state; 
but that when the act of importation ended, 
by a delivery to the consignee, the exclusive 
power over the subject belonged to the 
states as a part of their police power. From 
this analysis it is apparent that the ques- 
tion presented in this case was not decided 
in the License Cases. The point in judg- 
ment in them was strictly confined to the 
right of the states to prohibit the sale of 
intoxicating liquor after it had been brought 
within their territorial limits. The right to 
bring it within the states was not question- 
ed; and the reasoning which justified the 
right to prohibit sales admitted, by implica- 
tion, the right to introduce intoxicating liq- 
uor, as merchandise, from foreign countries, 
or from other states of the Union, free from 
the control of the several states, and subject 
to the exclusive power of congress over com- 
merce. 

It cannot be doubted that the law of Iowa 
now under examination, regarded as a rule 
for the transportation of merchandise, oper- 
ates as a regulation of commerce among the 
states. "Beyond all questinu, the transpor- 
tation of freight, or of the subjects of com- 
merce, for the purpose of exchange or sale, 
is a constituent of commerce itself. This 
has never been doubted, and probably the 
transportation of articles of trade from one 
state to another was the prominent idea in 
the minds of the framers of the constitution 
when to congress was committed the power 
to regulate commerce among the several 
states. A power to prevent embarrassing 
restrictions by any state was the thing de- 
sired. The power was given by the same 
words, and in the same clause, by which 
was conferred power to regulate commerce 
with foreign nations. It would be absui-d 
to suppose that the transmission of the sub- 
jects of trade from the state to the buyer, 
or from the place of production to the mar- 
ket, was not contemplated, for without tnat 
there could be no. consummated trade, either 
with foreign nations or among the states. 
* * * Nor does it make any difference 
whether this interchange of commodities is 
by land or by water. In either case the 



bringing of the goods from the seller to the 
buyer is commerce. Among the states it 
must have been principally by land when 
the constitution was adopted." Case of the 
State Freight Tax, 15 Wall. 232, 275, per 
Mr. Justice Strong. It was therefore decid- 
ed, in that case, that a tax upon freight 
transported from state to state was a regu- 
ulation of interstate transportation, and for 
that reason a regulation of commerce among 
the states. And this conclusion was reach- 
ed notwithstanding the fact that congress 
had not legislated on the subject, and not- 
withstanding the inference sought to be 
drawn from the fact that it was thereby 
left open to the legislation of the several 
states. On that point it was said by Mr. 
.Tustice Strong, speaking for the court, as 
follows (page 279): "Cases that have sus- 
tained state laws, alleged to be regulations 
of commerce among the states, have been 
such as related to bridges or dams across 
streams wholly within a state, police or 
health laws, or subjects of a kindred nature, 
not strictly of commercial regulations. The 
subjects were such as in Oilman v. Philadel- 
phia, 3 Wall. 713, it was said 'can be best 
regulated by rules and provisions suggested 
by the varying circumstances of different lo- 
calities and limited in their operation to such 
localities respectively.' However this may 
be, the rule has been asserted with great 
clearness that whenever the subjects over 
which a power to regulate commerce is as- 
serted are in their nature national, or admit- 
ting of one uniform system or plan of regu- 
lation, they may justly be. said to be of such 
a nature as to require exclusive legislation 
by congress. Cooley v. Board of Wardens, 
12 How. 299; Crandall v. State, 6 Wall. 42. 
Surely transportation of passengers or mer- 
chandise through a state, or from one state 
to another, is of this nature. It is of na- 
tional importance that over that subject 
there should be but one regulating power; 
for if one state can directly tax persons or 
property passing through it, or tax them in- 
directly by levying a tax upon their trans- 
portation, every other may, and thus com- 
mercial intercourse between states remote 
from each other may be destroyed. The 
produce of Western states may thus be ef- 
fectually excluded from Eastern markets;, 
for, though it might bear the imposition of 
a single tax, it would be crushed imder a 
load of many. It was to guard against the 
possibility of such commercial embarrass- 
ments, no doubt, that the power of regulat- 
ing commerce among the states was confer- 
red upon the federal government.'" The dis- 
tinction between cases in which congress 
has exerted its power over commerce, and 
those in which it has abstained from its ex- 
ercise, as bearing upon state legislation 
touching the subject, was first plainly point- 
ed out by Mr. Justice Curtis in the case of 
Cooley V. Board of Wardens, 12 Hoav. 299, 
318, and applies to commerce with foreign 



46 



THE POWERS OF CONGRESS. 



nations, as well as to commerce among the 
states. In that case, speaking of commerce 
with forei,i2:n nations, he said (page 319): 
"Now. the power to regnlate commerce em- 
braces a vast tield, containing not only 
many, bnt exceedingly various, subjects, 
4iuite unlike in their nature,— some impera- 
tively demanding a single uniform rule, op- 
erating equally on the commerce of the Unit- 
ed States in every port; and some, like the 
subject now in question, as imperatively de- 
manding that diversity which alone can 
meet the local necessities of navigation." It 
was tlierefore lield. in that case, that the 
laws of the several states concerning pilot- 
age, although in their nature regulations of 
foreign commerce, were, in the absence of 
legislation on the same subject by congress, 
valid exercises of power. The subject was 
local, and not national, and Avas likely to 
be best provided for. not by one system or 
plan of regulations, but by as many as the 
legislative discretion of the several states 
should deem applicable to tlie local peculiar- 
ities of the ports within their limits; and to 
this it may be added that it was a subject 
imperatively demanding positive regulation. 
The absence of legislation on the subject, 
therefore, by congress, was evidence of its 
opinicn that the matter might be best reg- 
ulated by local authority, and proof of ics 
iulention that local regulations might be 
made. 

It may be argued, however, that aside from 
siu-li regulations as these, which are purely 
local, the inference to be drawn from the 
al)seuce of legislation by congress on the 
subject excludes state legislation affecting 
commerce with foreign nations more strong- 
ly than that affecting commerce among the 
states. Laws which concern the exterior re- 
lations of the United States with other na- 
tions and governments are general in their 
nature, and should proceed exclusively from 
the legislative authority of the nation. The 
organization of our state and federal sys- 
tem of government is such that the people 
of the several states can have no relations 
with foreign powers in respect to commerce, 
or any other subject, except through the gov- 
ernment of the United States, and its laws 
and treaties. Henderson v. ;Mayor of New 
York, yj U. S. 2."')!>. 273. The same neces- 
sity, perhaps, does not exist equally in ref- 
<>rence to 'commerce among the states. The 
power conferred upon congress to regulate 
commerce ajiiong the states is indeed con- 
tained in the same clause of the constitution 
wliich confers upon it power to regulate 
commerce with foreign nations. The grant 
is conceived in the same terms, and the two 
powers are undoubtedly of the same class 
and character, and equally extensive. The 
actual exercise of its power over either sub- 
ject is equally and necessarily exclusive of 
that of the states, and paramount over all 
the powers of the states; so that state leg- 
islation, however legitimate in its origin or 



object, when it conflicts with the positive 
legislation of congress, or its intention, rea- 
sonably implied from its silence, in respect 
to the subject of commerce of both kinds 
must fail. And yet, in respect to commerce 
among the states, it may be, for the reason 
already assigned, that the same inference is 
not always to be drawn from the absence 
of congressional legislation, as might be in 
the case of commerce with foreign nations. 
The question, therefore, may be still consid- 
ered in each case as it arises, whether the 
fact that congress has failed in the partic- 
ular instance to provide by law a i-egulation 
of commerce among the states is conclusive 
of its intention that the subject shall be 
free from all positive regulation, or that, un- 
til it positively interferes, such commerce 
may be left to be freely dealt with by the 
respective states. We have seen that in the 
Case of the State Freight Tax, 15 NVall. 232, 
a tax imposed by one state upon freight 
transported to or from another state was 
held to be void, as a regulation of commerce 
among the states, on the ground that the 
transportation of passengers or merchandise 
through a state, or from one state to anoth- 
er, was in its nature national; so that it 
shotil:^. be subjected to one uniform system 
or plan of regulation, under the control of 
one regulating power. In that case the tax 
was not imi)osed for the purpose of regulat- 
ing interstate commerce, but in order to raise 
a revenue, and would have been a legitimate 
exercise of an admitted power of the state 
if it had not been exerted so as to operate 
as a regulation of interstate commerce. Any 
other regulation of interstate commerce, ap- 
plied as the tax was in that case, Avould fall 
equally within the rule of its decision. If 
the state has not power to tax freight and 
passengers passing through it, or to or from 
it, from or into another state, much less 
would it have the power directly to regulate 
such transportation, or to forbid it altogeth- 
er. If, in the present case, the law of Iowa 
operated upon all merchandise sought to be 
brought from another state into its limits, 
there could be no doubt that it would be a 
regulation of commerce among the states, 
and repugnant to the constitution of the 
United States. In point of fact, howcA'er, it 
applies only to one class of articles of a par- 
ticular kind, and prohibits their introduction 
into the state upon special grounds. It re- 
mains for us to consider whether those 
grounds are sutticient to justify it as an ex- 
ception from the rule Avhich would govern 
if they did not exist. 

It may be material, also, to state, in this 
connection, that congress had legislated on the 
general subject of interstate commerce by 
means of railroads prior to the date of the 
transaction on which the present suit is 
founded. Section 5258, Rev. St., provides 
that "every railroad company in the United 
States, whose road is operated by steam, its 
successors and assigns, is hereby authorized 



ENUMEKATED POWERS OF CONGRESS. 



47 



to carry upou and over its road, boats, bridg- 
es, and ferries, all passengers, troops, gov- 
ernment supplies, mails, freight, and prop- 
erty on their way from any state to another 
state, and to receive compensation therefor, 
and to connect with roads of other states so 
as to form continuous lines for the trans- 
portation of the same to the place of destina- 
tion." In the case of Railroad Co. y. Rich- 
mond, 19 Wall. 584, this section, then con- 
stituting a part of the act of congress of 
June 15, 1866, was considered. Referring to 
this act and the act of July 25, 1866, author- 
izing the construction of bridges over the 
Mississippi river, the court say: "These acts 
were passed under the poAver vested in con- 
gress to regulate commerce among the sev- 
eral states, and were designed to remove 
trammels upon transportation between dif- 
ferent states which had previously existed, 
and to prevent a creation of such trammels 
in future, and to facilitate railway transpor- 
tation by authorizing the construction of 
bridges over the navigable waters of the 
Mississippi, and they were intended to reach 
trammels interposed by state enactments or 
by existing laws of congress. * * * -p^jg 
power to regulate commerce among the sev- 
eral states was vested in congress, in order 
to secure equality and freedom in commer- 
cial intercourse against discriminating state 
legislation."' Congress had also legislated on 
the subject of the transportation of passen- 
gers and merchandise in chapter 6, tit. 48, 
Rev. St. ; sections 4252 to 4289, inclusive, 
having reference, however, mainly to trans- 
portation in vessels by water. But sections 
4278 and 4279 relate also to the transporta- 
tion of nitro-glycei'iu, and other similar ex- 
plosive substances, by land or water, and ei- 
ther as a matter of commerce with foreign 
countries, or among the several states. Sec- 
tion 4280 provides that "the two preceding- 
sections shall not be so construed as to pre- 
vent any state, territory, district, city, or 
town within the United States from regulat- 
ing or from prohibiting the traffic in or trans- 
portation of those substances between per- 
sons or places lying or being Avithin their re- 
spective territorial limits, or from prohibiting 
the introdviction thereof into such limits for 
sale, use, or consumption therein." So far 
as these regulations made by congress ex- 
tend, they are certainly indications of its in- 
tention that the transportation of conmiodi- 
ties betAveen the states shall be free, except 
Avhere it is positively restricted by congress 
itself, or by the states in particular cases by 
the express permission of congress. On this 
point the language of this court in the case 
of County of Mobile v. Kimball, 102 U. S. 
691, 697, is applicable. Repeating and ex- 
panding the idea expressed in the 0])inion in 
the case of Cooley v. Board of Wardens, 12 
HoAV. 299, this court said: "The subjects, in- 
deed, upon which congress can act under this 
poAA'er, are of infinite A-ariety, requiring for 
their successful management different plans 



or modes of treatment. Some of them are 
national in their character, and admit and re- 
quire uniformity of regulation, affecting alike 
all the states; others are local, or are mere 
aids to commerce, and can only be properly 
regulated by provisions adapted to their spe- 
cial circumstances and localities. In the 
former class may be mentioned all that por- 
tion of commerce with foreign countries or 
between the states which consists in the 
transportation, purchase, sale, and exchange 
of commodities. Here, there can of neces- 
sity be only one system or plan of regula- 
tions; and that, congress alone can pre- 
scribe. Its non-action, in such cases, Avith 
respect to any particular commodity or mode 
of transportation, is a declaration of its pur- 
pose that the commerce in that commodity, 
or by that means of transportation, shall be 
free. There would otherAAase be no security 
against conflicting regulations of different 
states; each discriminating in faA'or of its 
OAAm products, and against the products of 
citizens of other states. And it is a matter 
of public history that the object of vesting 
in congress the poAA'er to regulate commerce 
Avith foreign nations and among the states 
Avas to insure uniformity of regulation 
against conflicting and discriminating state 
legislation." Also (page 702): "Commerce 
AAath foreign countries and among the states, 
strictly considered, consists in intercoiirse 
and traffic; including, in these terms, naviga- 
tion and the transportation and transit of 
persons and property, as AA^ell as the pur- 
chase, sale, and exchange of commodities. 
For the regulation of commerce, as thus de- 
fined, there can be only one system of rules, 
applicable alike to the AA^hole country; and 
the authority Avhich can act for the whole 
country can alone adopt such a system. Ac- 
tion upon it by separate states is not, there- 
fore, permissible." 

The principle thus annoimced has a more 
obvious application to the circumstances ot 
such a case as the present, AA^hen it is con- 
sidered that the laAV of the state of loAva un- 
der consideration, while it professes to regu- 
late the conduct of carriers engaged in trans- 
portation within the limits of that state, 
nevertheless materially affects, if allowed to 
operate, the conduct of such carriers, both as 
respects their rights and obligations, in ev- 
ery other state into or through Avhich they 
pass, in the prosecution of their business of 
interstate transportation. In the present 
case, the defendant is sued as a common car- 
rier in the state of Illinois, and the breach 
of duty alleged against it is a A'iolation of 
the laAV of that state in refusing to receiA'e 
and transport goods which, as a common car- 
rier, by that law, it was bound to accept and 
cariT- It interposes as a defense a law of 
the state of Iowa Avhich forbids the delivei-y 
of such goods within that state. Has the 
law of loAva any extraterritorial force which 
does not belong to the laAv of the state of Il- 
linois? If the laAV of loAva forbids the de- 



48 



THE POWERS OF CONGRESS. 



livery, and the law of Illinois requires the 
tiansiiortatiou, which of the two shall pre- 
vail? How can the former make void the 
latter? In view of this necessary operation 
of the law of Iowa, if it be valid, the lan- 
gua^ie of this court in the case of Hall v. 
De (Uiir, 95 U. S. 485, 488, is exactly in point. 
It was there said: "But we think it may 
safely be said that state legislation, which 
seeks to impose a direct burden upon inter- 
state commerce, or to interfere directly with 
its freedom, does encroach upon the exclu- 
sive power of congress. The statute now un- 
der consideration, in our opinion, occupies 
that position. It does not act upon the busi- 
ness through the local instruments to be em- 
ployed after coming Avithin the state, but di- 
rectly upon the business as it comes into the 
state from without, or goes out from within. 
While it purports only to control the carrier 
when engaged within the state, it must nec- 
essarily influence his conduct to some extent 
in the management of his business through- 
out his entire voyage. His disposition of 
passengers taken up and put down within 
the state, or taken up within to be carried 
without, cannot but affect in a greater or less 
degree those taken up without and brought 
within, and sometimes those taken up with- 
in and put down without. A passenger in 
the cabin set apart for the use of whites 
without the state must, when the boat comes 
within, share the accommodations of that 
cabin with such colored persons as may come 
on board afterwards, if the law is enforced. 
It was to meet just such a case that the 
commercial clause in the constitution was 
adopted. The river Mississippi passes 
through or along the borders of ten different 
states, and its tributaries reach many more. 
The commerce upon these waters is im- 
mense, and its regulation clearly a matter of 
national concern. If each state was at lib- 
erty to regulate the conduct of carriers while 
within its jurisdiction, the confusion likely to 
follow could not but be productive of great 
inconvenience and unnecessary hardship. 
Each state could provide for its own pas- 
sengers, and regulate the transportation of 
its own freight, regardless of the interests of 
others. Nay, more, it could prescribe rules 
by which the carrier must be governed witli- 
iu the state, in respect to passengers and 
property bi-ought from without. On one side 
of the river or its tributaries he might be re- 
quired to observe one set of rules, and on 
the other another. Commerce cannot flourish 
in the midst of such embarrassments. No 
carrier of passengers can conduct his busi- 
ness with satisfaction to himself, or comfort 
to those employing him, if on one side of a 
state line his pa^seng(n•s, both white and col- 
ored, must be permitted to occupy the same 
cabin, and on the other be kept separate. 
Uniformity in the regulations by which he is 
to be governed from one end to the other of 
his route is a necessity in his business, and, 
to secure it, congress, which is untrammeled 



by state lines, has been vested with the ex- 
clusive legislative power of determining what 
such regulations shall be." 

It is impossible to justify this statute of 
Iowa by classifying it as an inspection law. 
The right of the states to pass inspection 
laws is expressly recognized in article 1, § 
10, Const., in the clause declaring that "no 
state shall, without the consent of congress, 
lay any imposts or duties on imports or ex- 
ports, except what may be absolutely neces- 
sary for executing its inspection laws." 
* * * "And all such laws shall be subject 
to the revision and control of the congress." 
The nature and character of the inspection 
laws of the states, contemplated by tliis pro- 
vision of the constitution, were very fully 
exhibited in the case of Turner v. Maryland, 
107 U. S. 38, 2 Sup. Ct. 44. "The object'of in- 
spection laws," said Chief Justice Marshall 
in Gibbons v. Ogden, 9 Wheat. 1, 20o, "is to 
improve the quality of articles produced by 
the labor of a country, to tit them for expor- 
tation, or, it may be, for domestic use. They 
act upon the subject, before it becomes an ar- 
ticle of foreign commerce, or of commerce 
among the states, and prepare it for that 
purpose." They are confined to such par- 
ticulars as in the estimation of the legisla- 
ture, and according to the customs of trade, 
are deemed necessary to tit the inspected 
article for the market, by giving to the pur- 
chaser public assurance that the article is in 
that condition, and of that quality, Avhich 
makes it merchantable, and fit for use or 
consumption. They are not founded on the 
idea that the things in respect to which in- 
spection is required, are dangerous or nox- 
ious in themselves. As was said in Tiu-ner v. 
Maryland, 107 U. S. 38. 55, 2 Sup. Ct. 44, 58: 
"Recognized elements of inspection laws 
have always been quality of the article, form, 
capacity, dimensions, and weight of pack- 
age, mode of putting up, and marking and 
branding of various kinds; all these matters 
being supervised by a public officer having 
authority to pass or not pass the article as 
lawful merchandise, as it did or did not an- 
swer the prescribe<l requirements. It has 
never been regarded as necessary, and it is 
manifestly not necessary, that all of these 
elements should co-exist, in order to make 
a valid inspection law. Quality alone may 
be the subject of inspection, without other 
requirement, or the inspection may be made 
to extend to all of the above matters." It 
has never been regarded as within the legiti- 
mate scope of inspection laws to foi'bid trade 
in respect to any known article of commerce, 
irrespective of its condition and quality, 
merely on account of its intrinsic nature, and 
the injurious consequences of its use or 
abuse. 

For similar reasons the statute of Iowa 
under consideration cannot be x'egarded as 
a regulation of quarantine, or a sanitary 
provision for the purpose of protecting the 
physical health of the community, or a law 



ENUMERATED POWERS OF CONGRESS. 



49 



to prevent tlie introduction into the state of 
disease, contagious, infectious, or otherwise. 
Doubtless, the states have power to provide 
by law suitable measures to prevent the iu- 
troduction into the states of articles of trade 
vrhich, on account of their existing condi- 
tion, AA'ould bring in and spread disease, 
pestilence, and death; such as rags or other 
substances infected with the germs of yel- 
low fever, or the virus of small-pox, or cattle 
or meat or other provisions that are diseased 
or decayed, or otherwise, from their condi- 
tion and quality, unfit for human use or con- 
sumption. Such articles are not merchant- 
able. They are not legitimate subjects of 
trade and commerce. They may be rightly 
outlawed, as intrinsically and directly the 
immediate sources and causes of destruction 
to human health and life. The self-protect- 
ing power of each state, therefore, may be 
rightfiilly exerted against their introduction, 
and such exercises of power cannot be con- 
sidered regulations of commerce prohibited 
by the constitution. Upon this point, the 
observations of Mr. Justice Cati'on in the 
License Caset., 5 How. 504, 599, are very 
much to the point. Speaking of the police pow- 
er as reserved to the states, and its relation 
to the power granted to congress over com- 
merce, he said: "The assumption is that the 
police power was not touched by the con- 
stitution, but left to the states, as the con- 
stitution found it. This is admitted; and 
whenever a thing, from character or condi- 
tion, is of a description to be regulated by 
that power in the state, then the regulation 
Uiay be made by the state, and congress can- 
not interfere. But this must always de- 
pend on facts subject to legal ascertainment, 
so that the injured may have redress. And 
the fact must find its support in this, wheth- 
er the prohibited article belongs to, and is 
subject to be regulated as part of, foreign 
commerce, or of commerce among the states. 
If, from its nature, it does not belong to 
commerce, or if its condition, from putres- 
cence or other cause, is such, when it is 
about to enter the state, that it no longer 
belongs to commerce, or, in other words, is 
not a commercial article, then the state pow- 
er may exclude its introduction; and, as an 
incident to this power, a state may use 
means to ascertain the fact. And here is the 
limit between the sovereign power of the 
state and the federal poAver; that is to say, 
that Avhich does not belong to commerce is 
within the jurisdiction of the police poAver 
of the state, and that which does belong to 
commerce is within the jurisdiction of the 
United States. And to this limit must all 
the general views come, as I suppose, that 
Avere suggested in the reasoning of this court 
in the cases of Gibbons v. Ogden, supra. 
Brown v. State, 12 Wheat. 419, and Ncav 
York V. Miln, 11 Pet. 102. What, then, is 
the assumption of the state court? Undoubt- 
edly, in effect, that the state had the poAver 
to declare what should be an article of laAV- 

SMITH, CONST. LAW — 4 



fvil commerce in the particular state; and, 
having declared that ardent spirits and 
wines were deleterious to morals and health, 
they ceased to be commercial commodities 
there, and that then the police poAver at- 
tached, and consequently the poAvers of con- 
gress could not interfere. The exclusive 
state power is made to rest, not on the fact 
of the state or condition of the article, nor 
that it is property usually passing by sale 
from hand to hand, but on the declaration 
found in the state laws, and asserted as the 
state policy, that it shall be excluded from 
commerce. And by this means the soA'er- 
eign jurisdiction in the state is attempted to 
be created in a case Avhere it did not pre- 
viously exist. If this be the true construc- 
tion of the constitutional provision, then the 
paramount poAver of congress to regulate 
commerce is subject ;to a A'ery material lim- 
itation; for it takes from congress, and 
leaves Avith the states, the poAver to deter- 
mine the commodities or articles of prop- 
erty which are the subjects of laAvful com- 
merce. Congress may regulate, but the 
states determine, what shall or shall not be 
regulated. Upon this theory, the poAver to 
regulate commerce, instead of being parii- 
mount over the subject, Avould become sub- 
ordinate to the state police power; for it is 
obvious that the poAver to determine the ar- 
ticles which may be the subjects of com- 
merce, and thus to circumscribe its scope 
and operation, is, in effect, th.e controlling 
one. The police power would not only be a 
formidable riA^al, but, in a struggle, must nec- 
essarily triumph over the commercial poAV- 
er, as the poAver to regulate is dependent up- 
on the power to fix and determine upon the 
subjects to be regulated. The same process 
of legislation and reasoning adopted by the 
state and its courts could bring Avithin the 
police poAver any article of consumption that 
a state might Avish to exclude, Avhether it 
belonged to that Avhich Avas drunk, or to 
food and clothing; and Avith nearly equal 
claims to propriety, as malt liquors, and the 
pi-oduce of fruits other than grapes, stand 
on no higher ground than the light Avines 
of this and other countries, excluded, in ef- 
fect, by the law as it noAV stands. And it 
Avould be only another step to regulate real 
or supposed extraA^agance in food and cloth- 
ing." This question was considered in the 
case of Railroad Co. v. Husen, 95 U. S. 465, 
in Avhich this court declared an act of the 
legislature of Missouri, which prohibited 
driA'ing or conveying any Texas, Mexican, 
or Indian cattle into the state between the 
1st day of March and the 1st day of NoA^em- 
ber in each year, to be in conflict with the 
constitutional provision iuA'csting congress 
with poAver to regulate commerce among 
the several states; holding that such a stat- 
ute was more than a quarantine regulation, 
and not a legitimate exercise of the police 
power of the state. In that case it was 
said (page 472): "While we unhesitatingly 



:o 



THE POWERS OF CONGRESS. 



admit that a state may pass sanitary laws, 
and laws for the protection of life, liberty, 
health, or property within its borders; while 
Jt may prevent persons and animals suffer- 
ing: Tinder contajiious or infectious diseases, 
or convicts, etc., from entering the state; 
while, for the purpose of self-protection, it 
may establish quarantine and reasonable in- 
spection laws.— it may not interfere with 
trauspoi-tation into or through the state, be- 
yond what is absolutely necessary for its 
self-protection. It may not, under the cover 
of exerting its police powers, substantially 
prohibit or burden either foreign or inter- 
slate commerce. * * * The reach of the 
statute was far beyond its professed object, 
and far into the realm which is within the 
exclusive jurisdiction of congress. * * * 
The police power of a stat« cannot obstruct 
foreign commerce or interstate commerce 
be.vond the necessity for its exercise; and, 
under color of it, objects not within its scope 
cannot be secured at the expense of the pro- 
tection afforded by the federal constitution. 
And, as its range sometimes comes very near 
to the field committed by the constitution to 
congress, it is the duty of the courts to guard 
vigilantly against any needless intrusion." 
The same principles were declared in Hen- 
derson V. Mayor of New York, 92 U. S. 259. 
and Chy Lung v. Freeman, Id. 275. In the 
latter case, speaking of the right of the state 
to protect itself from the introduction of 
paupers and convicted criminals from abroad, 
the court said: "Snch a right can only arise 
from a vital necessity for its exercise, and 
cannot be carried beyond the scope of that 
necessity." "It may also be admitted." as 
was said in the case of Railroad Co. v. Hu- 
sen. 95 C S. 4(i5, 471, "that the police power 
of a state justifies the adoption of precau- 
tionary measures against social evils. Un- 
der it a state may legislate to prevent the 
spread of crime, or pauperism, or disturb- 
ance of the peace. It may exclude from its 
limits, convicts, paupers, idiots, and lunatics, 
and persons likely to become a public charge, 
as well as persons afflicted by contagious 
or infectious diseases,— a right founded, as 
intimated in the Passenger Cases, 7 How. 
283, by Mr. Justice Grier, in the sacred law 
of self-defense. Tide Neff v. Pennoyer, 3 
Sawy. 283, Fed. Cas. No. 10,083. The same 
principle, it may also be conceded, would jus- 
tify the exclusion of property dangerous to 
the property of citizens of the state; for 
example, animals having contagious or in- 
fectious diseases. All these exertions of 
power are in immediate connection with the 
protection of persons and property against 
noxious acts of other persons, or such a 
use of property as is injurious to the prop- 
erty of others. They are self-defensive. 
But, whatever may be the nature and reach 
of the police power of a state, it cannot be 
exercised over a subject confided exclusively 
to congress by the federal constitution. It 
cannot invade the domain of the national 



government. * * * Neither the unlimited 
powers of a state to tax, nor any of its large 
police powers, can be exercised to such an 
extent as to work a practical assumption of 
the powers properly conferred upon con- 
gress by the constitution." 

It is conceded, as we have already shown, 
that for the purposes of its policy a state has 
legislative control, exclusive of congress, 
within its territory of all persons, things, 
and transactions of strictly internal concern. 
For the purpose of protecting its people 
against the evils of intemperance, it has the 
right to prohibit the manufacture within its 
limits of intoxicating liquors. It may also 
prohibit all domestic commerce in them be- 
tween its own inhabitants, whether the ar- 
ticles are introduced from other states or 
from foreign countries. It may punish those 
who sell them in violation of its laws. It 
may adopt any measures tending, even in- 
directly and remotely, to make the policy ef- 
fective, until it passes the line of poAver 
delegated to congress under the constitution. 
It cannot, without tlie consent of congress, 
expressed or implied, regulate commerce be- 
tween its people and those of the other states 
of the I'nion. in order to effect its end, 
however desirable such a regulation might 
be. The statute of Iowa under consideration 
falls within this prohibition. It is not an 
inspection law; it is not a quarantine or 
sanitary law. It is essentially a regulation 
of commerce among the states, within any 
definition hei'etofore given to that term, or 
which can be given; and, although its mo- 
tive and purpose are to perfect the policy 
of the state of Iowa in protecting its citizens 
against the evils of intemi)erance. it is none 
the less on that account a regulation of com- 
merce. If it had extended its provisions so 
as to prohibit the introduction into the state 
from foreign countries of all importations of 
intoxicating licpiors produced abroad, no one 
would doubt the nature of the provision as a 
regulation of foreign commerce. Its nature 
is not changed by its application to com- 
merce among the states. Can it be supposed 
that, by omitting any express declarations 
on the subject, congress has intended to sub- 
mit to the several states the decision of the 
question in each locality of what shall and 
what shall not be articles of traffic in the 
interstate commerce of the country? If so, 
it has left to each state, according to its own 
caprice and arbitrary will, to discriminate 
for or against every article grown, produced, 
manufactured, or sold in any state, and 
sought to be introduced as an article of com- 
merce into any other. If the state of Iowa 
may proliiljit the importation of intoxicating 
liquors from all other states, it may also 
include tobacco, or any other article, the use 
or abuse of which it may deem deleterious. 
It may not choose, even, to be governed by 
considerations growing out of the health, 
comfort, or peace of the community. Its pol- 
icy may be directed to other ends. It may 



ENUMERATED POWERS OF CONGRESS. 



.1 



■choose to establish a system directed to the 
promotion and benefit of its own agriculture, 
manufactures, or arts of any description, 
and prevent the inti-oduction and sale Avith- 
in its limits of any or of all articles that it 
may select as coming into competition with 
those which it seeks to protect. The police 
power of the state would extend to such 
■cases, as well as to those in which it was 
sought to legislate in behalf of the health, 
peace, and morals of the people. In view 
of the commercial anarchy and confusion 
that would result from the diverse exertions 
of power by the several states of the Union, 
it cannot be supposed that the constitution 
or congress has intended to limit the free- 
dom of commercial intercourse among the 
people of the several states. "It cannot be 
too strongly insisted upon," said this court 
in Railroad Co. v. Illinois, 118 U. S. 557, 572, 
7 Sup. Ct. 4, "that the right of continuous 
transportation from one end of the country 
to the other is essential in modern times to 
that freedom of commerce from the re- 
straints which the states might choose to im- 
pose upon it that the commerce clause was 
intended to secure. This clause, giving to 
congress the power to regulate commerce 
among the states and with foreign nations, 
as this court has said before, was among 
the most important of the subjects which 
prompted the formation of the constitution. 
Cook V. Pennsylvania, 97 U. S. 566, 574; 
Brown v. Maryland, 12 Wheat. 419, 446. 
And it would be a very feeble and almost 
useless provision, but poorly adapted to se- 
cure the entii'e freedom of comtr^^vce among 
the states, which was deemed essential to a 
more perfect union by the framers of the 
constitution, if, at eveiy stage of the trans- 
portation of goods and chattels through the 
country, the state within whose limits a part 
of the transportation must be done could 
impose regulations concerning the pnce, 
compensation, or taxation, or any other re- 
strictive regulation interfering with and se- 
riously embarrassing this commerce." In 
Brown v. Houston, 114 U. S. 622, 630, 5 Sup. 
Ct. 1091, it was declared that the power of 
congress over commerce among the states 
"is certainly so far exclusive that no state 
has power to make any law or i*egulation 
-which will affect the free and unrestrained 
intercourse and trade between the states, as 
congress has left it, or which will impose 
any discriminating burden or tax upon the 
citizens or products of other states, com- 
ing or brought within its jurisdiction. All 
laws and regulations are restrictive of nat- 
ural freedom to some extent, and, where no 
regulation is imposed by the government 
which has the exclusive power to regulate, 
it is an indication of its will that the mat- 
ter shall be left free. So long as congress 
does not pass any law to regulate commerce 
among the several states, it thereby indi- 
cates its will that that commerce shall be 
free and untrammeled; and any regulation 



of the subject by the states is repugnant to 
su.ch freedom. This has frequently been laid 
down as law in the judgments of this court." 
The present case is concluded, we think, 
by the judgment of this court in Walling v. 
Micliigan, 116 U. S. 446, 6 Sup. Ct. 454. In 
that case an act of the legislature of the 
state of Michigan which imposed a tax upon 
persons who, not residing or having their 
principal place of business within the state, 
engaged there in the business of selling or 
soliciting the sale of intoxicating liquors to 
be shipped into the state from places with- 
out it, but did not impose a similar tax up- 
on persons selling or soliciting the sale of 
intoxicating liquors manufactured in the 
state, was declared to be void, on the ground 
that it was a regulation in restraint of com- 
merce repugnant to the constitution of the 
United States. In that case it was said 
(page 459): "It is suggested by the learned 
judge who delivered the opinion of the su- 
preme court of Michigan in this case that 
the tax imposed by the act of 1875 is an ex- 
ercise by the legislature of Michigan of the 
police power of the state for the discourage- 
ment of the use of intoxicating liquors, and 
the preservation of the health and moi-als 
of the people. This would be a perfect jus- 
tification of the act if it did not discrimi- 
nate against the citizens and products of oth- 
er states as a matter of commerce between 
the states, and thus usurp one of the prerog- 
atives of the national legislature. The po- 
lice power cannot be set up to control the 
inhibitions of the federal constitution, or 
the powers of the United States government 
created thereby." It would be error to lay 
any stress on the fact that the statute pass- 
ed upon in that case made a discrimination 
between citizens and pi'oducts of other 
states in favor of those of the state of Mich- 
igan, notwithstanding the intimation on that 
point in the foregoing extract from the opin- 
ion. This appears plainly from what was 
decided in the case of Robbins v. Taxing 
Dist, 120 U. S. 489, 7 Sup. Ct. 592. It was 
there said (page 497, 120 U. S., and page 592, 
7 Sup. Ct.): "It is strongly urged, as if it 
were a material point in the case, that no 
discrimination is made between domestic 
and foreign drummers, — those of Tennessee, 
and those of other states; that all are taxed 
alike. But that does not meet the dilficulty. 
Interstate commerce cannot be taxed at all, 
even though the same amount of tax should 
be laid on domestic commerce, or that which 
is carried on solely within the state. This 
was decided in the Case of the State Freight 
Tax, 15 Wall. 232." In answer to another 
suggestion in the opinion of the supreme 
court of Michigan, that the regulation con- 
tained in the act did not amount to a pro- 
hibition, this court said: "We are unable to 
adopt the views of that learned tribunal as 
here expressed. It is the power to regulate 
commerce among the several states Avhich 
the constitution in terms confers upon con- 



52 



THE POWERS OF CONGRESS. 



gress; and this power, as we have seen, is 
exclusive in cases like the present, where 
the subject of regulation is one that admits 
and requires uniformity, and where any reg- 
ulation affects the freedom of traffic among 
the states." 

The relation of the police powers of the 
state to the powers granted to congi-ess by 
the constitution over foreign and interstate 
commerce was stated by this court in the 
opinion in the case of Robbins v. Taxing 
Dist.. 120 U. S. 489, 493, 7 Sup. Ct. .592, 594, 
as follows: "It is also an established prin- 
ciple, as already indicated, that the only way 
in which commerce between the states can 
be legitimately affected by state laws, is 
when, by virtue of its police power, and its 
jurisdiction over persons and property with- 
in its limits, a state provides for the security 
of the lives, limbs, health, and comfort of 
persons, and the protection of property; or 
when it does those things which may other- 
wise incidentally affect commerce, such as 
the establishment and regulation of high- 
ways, canals, railroads, wharves, ferries, and 
other commercial facilities; the passage of 
inspection laws to secure the due quality and 
measure of products and commodities; the 
passage of laws to regulate or restrict the 
sale of articles deemed injurious to the 
health or morals of the community; the im- 
position of taxes upon persons residing with- 
in the state, or belonging to its population, 
and upon avocations and employments pur- 
sued thei'ein, not directly connected with 
foreign or interstate commerce, or with some 
other employment or business exercised un- 
der authority of the constitution and laws 
of the United States; and the imposition of 
taxes upon all property within the state min- 
gled with and forming part of the great mass 
of property therein. But in making such in- 
ternal regulations the state cannot impose 
taxes upon persons passing through the state, 
or coming into it merely for a temporary pur- 
pose, especially if connected with interstate 
or foreign commerce; nor can it impose such 
taxes upon property imported into the state 
from abroad or from another state, and not 
yet become a part of the common mass of 
property therein; and no discrimination can 
be made by any such regulations adversely 
to the persons or property of other states; 
and no regulations can be made directly af- 
fecting interstate commerce. Any taxation 
or regulation of the latter- character would be 
an unavithorized interference with the pow- 
er given to congress over the subject. * * * 
In a word, it may be said that, in the matter 
of interstate commerce, the United States are 
but one country, and are and must be sub- 
ject to one system of regulations, and not to 
a multitude of systems. The doctrine of the 
freedom of that commerce, except as regulat- 
ed by congress, is so firmly established that 
it is unnecessary to enlarge further upon this 
subject." 

The section of the statute of Iowa, the 



validity of which is drawn in question in 
this case, does not fall within this enumera- 
tion of legitimate exertions of the police pow- 
er. It is not an exercise of the jurisdiction of 
the state over persons and property within 
its limits; on the contrary, it is an attempt 
to exert that jurisdiction over persons and 
property within tlie limits of other states. It 
seeks to prohibit and stop their passage and 
importation into its own limits, and is de- 
signed as a regulation for the conduct of 
commerce before the merchandise is brought 
to its border. It is not one of those local regu- 
lations designed to aid and facilitate com- 
merce; it is not an inspection law to secure 
the due quality and measure of a commodi- 
ty; it is not a law to regulate or restrict the 
sale of an article deemed injurious to the 
health and morals of the community; it is 
not a regulation confined to the purely in- 
ternal and domestic commerce of the state; 
it is not a restriction which only operates 
upon property after it has become mingled 
with and forms part of the mass of the prop- 
erty within the state. It is, on the other 
hand, a regulation directly affecting inter- 
state commerce in an essential and vital 
point. If authorized, in the present instance, 
upon the grounds and motives of the policy 
which have dictated it, the same reason 
would justify any and every other state reg- 
ulation of interstate commerce upon any 
grounds and reasons which might prompt in 
particular cases their adoption. It is there- 
fore a regulation of that character which 
constitutes an unauthorized interference with 
the power given to congress over the subject. 
If not in contravention of any positive legis- 
lation by congress, it is nevertheless a breach 
and inteiTuption of that liberty of trade 
which congress ordains as the national poli- 
cy, by Avilling that it shall be free from re- 
strictive regulations. 

It may be said, however, that the right of 
the state to restrict or prohibit sales of in- 
toxicating liquor within its limits, conced- 
ed to exist as a part of its police power, im- 
plies the right to prohibit its importation, be- 
cause the latter is necessary to the effectual 
exercise of the former. The argument is that 
a prohibition of the sale cannot be made ef- 
fective except by preventing the introduc- 
tion of the subject of the sale; that, if its 
entrance into the state is permitted, the traf- 
fic in it cannot be suppressed. But the right 
to prohibit sales, so far as conceded to the 
states, arises only after the act of transporta- 
tion has terminated, because the sales which 
the state may forbid are of things within 
its jurisdiction. Its power over them does 
not begin to operate until they are brought 
within the territorial limits which circum- 
scribe it. It might be very convenient and 
useful, in the execution of the policy of 
prohibition within the state, to extend the 
powers of the state beyond its territorial 
limits. But such extraterritorial powers 
cannot be assumed upon such an imiilica- 



ENUMERATED POWERS OF CONGRESS. 



53 



tion. On the contrary, the nature of the case 
contradicts their existence; for, if they he- 
long to one state, they belong to all, and can- 
not be exercised severally and independently. 
The attempt would necessarily produce that 
conflict and confusion which it was the very 
purpose of the constitution, by its delega- 
tions of national power, to prevent. It is 
easier to thinli that the right of importation 
from abroad, and of transportation from one 
state to another, includes, by necessary im- 
plication, the right of the importer to sell in 
unbroken packages at the place where the 
transit terminates; for the very purpose and 
motive of that branch of commerce which 
consists in transportation is that other and 
consequent act of commerce which consists 
in the sale and exchange of the commodities 
transported. Such, indeed, w^as the point de- 
cided in the case of Brown v. Maiyland, 12 
Wheat. 419, as to foreign commerce, with the 
express statement, in the opinion of Chief 
Justice Marshall, that the conclusion would 
be the same in a case of commerce among 
the states. But it is not necessai-y now to 
express any opinion upon the point, because 
that question does not arise in the present 
case. The precise line which divides the 
transaction, so far as it belongs to foreign 
or interstate commerce, from the internal and 
domestic commerce of the state, we are not 
now called upon to delineate. It is enough 
to say that the power to regulate or forbid 
the sale of a commodity, after it has been 
brought into the state, does not carry with 
it the right and power to prevent its intro- 
duction bj^ transportation from another state. 
For these reasons we are constrained to 
pronounce against the validity of the section 
of the statute of Iowa involved in this case. 
The judgment of the circuit court of the 
United States for the Northern district of 
Illinois is therefore reversed, and the cause 
remanded, with instructions to sustain the 
demurrer to the plea, and to take further 
proceedings therein in conformity with this 
opinion. 

LAMAR, J., was not present at the argu- 
ment of this case, and took no part in its de- 
cision. 

Mr. Chief Justice WAITE, Mr. Justice 
HARLAN, and Mr. Justice GRAY, dissent- 



FIELD, J. (concurring). I concur in the 
judgment of the court in this case, and in 
the greater part of the opinion upc« Avhich 
it is founded. The opinion clearly shows, as 
I think, that the law of Iowa prohibiting the 
importation into that state of intoxicating 
liquors is an encroachment on the power of 
congress over interstate commerce. That 
commerce is a subject of vast extent. It em- 
braces intercourse between citizens of dif- 
ferent states for purpose of trade in any and 
all its forms, including the transportation, 



purchase, sale, and exchange of commodities. 
The power to regulate it, which is vested 
in congress in the same clause with the 
power to regulate commerce with foreign 
nations, is general in its terms. And to reg- 
ulate this commerce is to prescribe the con- 
ditions under which it shall be conducted; 
that is, how far it shall be free, and how far 
subject to restrictions. The defendant is a 
common carrier, engaged in the transporta- 
tion of freight by railway, not only between 
places in the state of Illinois, but also be- 
tween places in different states. In the lat- 
ter business it is, therefore, engaged in in- 
terstate commerce. Whatever is an article of 
commerce it may carry, subject to such reg- 
ulations as may be necessary for the con- 
venience and safety of the community 
through which its cars pass, and to insure 
safety in the carriage of the freight. The 
law of Iowa prescribing the conditions upon 
which certain liquors may be imported into 
that state is, therefore, a regulation of inter- 
state commerce. Such regulation, where the 
subject, like the transportation of goods, is 
national in its character, can be made only 
by congress, — the power which can act for 
the whole country. Action by the states 
upon such commerce is not, therefore, per- 
missible. Mobile V. Kimball, 102 U. S. 691, 
697. What is an ai-ticle of commerce is de- 
terminable by the usages of the commercial 
world, and does not depend upon the declai*a- 
tion of any state. The state possesses the 
power to prescribe all such regulations with 
respect to the possession, use, and sale of 
property within its limits as may be neces- 
sary to protect the health, lives, and morals 
of its people; and that power may be ap- 
plied to all kinds of property, even that 
which in its nature is harmless. But the 
power of regulation for that purpose is one 
thing, and the power to exclude an article 
from commerce by a declaration that it shall 
not thenceforth be the subject of use and 
sale is another and very different thing. If 
the state could thus take an article from 
commerce, its power over interstate com- 
merce would be superior to that of congress, 
where the constitution has vested it. The 
language of Mr. Justice Catron on this sub- 
ject in the License Cases, 5 How. GOO, quoted 
in the opinion of the court, is instructive. 
Speaking of the assumption by the state of 
the power to declare what shall and Avhat 
shall not be deemed an article of commerce 
within its limits, and thus to permit the sale 
of one and prohibit the sale of the other, 
without reference to congressional power of 
regulation, the learned justice said: "The 
exclusive state power is made to rest, not 
on the fact of the state or condition of the 
article, nor that it is property usually pass- 
ing by sale from hand to hand, but on the 
declaration found in the state laws, and as- 
serted as the state policy, that it shall be 
excluded from commerce; and by this means 
the sovereign jurisdiction in the state is at- 



54 



THE POWEKS OF CONGRESS. 



tempted to be created in a case where it did 
uot previously exist. If this be tlie true con- 
struction of the constitutional provision, then 
the paramount power of congress to regu- 
late commerce is subject to a very material 
limitation; for it takes from congress, and 
leaves with the states, the power to deter- 
mine the commodities or articles of property 
which are the subjects of lawful commerce. 
Congress may regulate, but the states deter- 
mine what shall or shall uot -be regulated. 
Upon this theory the power to regulate com- 
merce, instead of being pai-amount over the 
subject, would become subordinate to the 
state police power; for it is obvious that the 
power to determine the articles which may 
be the subjects of commerce, and thus to 
circumscribe its scope and operation, is, in 
effect, the controlling one. The police pow- 
er would not only be a formidable rival, but, 
in a struggle, must necessarily triumph over 
the commercial power, as the power to regu- 
late is dependent upon the power to Mx and 
determine upon the subjects to be regu- 
lated." 

In Mugler v. Kansas, 123 U. S. G23. 8 Sup. 
Ct. 273 (recently decided), this court held a 
statute of that state to be valid which pro- 
hibited the manufacture and sale within 
its limits of intoxicating liquors except for 
medical, scientific, or mechanical puiposes, 
and made a violation of its provisions a mis- 
demeanor punishable by fine or imprison- 
ment. I agreed to so much of the opinion of 
the court in that case as asserted that there 
was nothing in the constitution or laws of 
the United States which affected the validity 
of the statute prohibiting the sale of such 
liquors manufactured in the state, except un- 
der proper regulations for the protection of 
the health and morals of the people. But, 
at the same time, I stated, without express- 
ing any opinion on the subject, that I was 
not prepared to say that the state could pro- 
hibit the sale of such liquors within its lim- 
its under like regulations, if congress should 
authorize their importation; obseiTing that 
the right to import an article of merchandise, 
recognized as such by the commercial world, 
whether the right be given by act of con- 
gress or by treaty with a foreign nation, 
would seem necessarily to carry the right to 
sell the article when imported. Where the 
importation is authorized from one state to 
another, a similar right of sale of the article 
imported would seem to follow. The ques- 
tion upon which I was then unwilling to ex- 
press an opinion is pi'esented in this case; 
not in a direct way, it is true, but in such 
a form as, it seems to me, to require consid- 
eration. 

A statute of Iowa contains a prohibition, 
similar to that of the Kansas statute, upon 
the manufacture and sale of intoxicating 
liquors within its limit.s, with the additional 
exception of permission to use them for cu- 
linary purposes, and to sell foreign liquors 
imported under a law of congress, in the 



original casks or packages in which they are 
imported. The law under consideration in 
this case, prohibiting the importation into 
Iowa of such liquors from other states, with- 
out a license fur that purpose, Avas passed 
to carry out the policy of the state to sup- 
press the sale of such liquors within its lim- 
its. And the argument is pressed with much 
force that, if the state cannot prohibit the 
importation, its policy to suppress the sale 
will be defeated; and if legislation estab- 
lishing such policy is not in conllict with the 
constitution of the United States, this addi- 
tional measure to carry the legislation into 
successful operation must be permissible. 
The argument assumes that the right of im- 
portation carries with it the right to sell the 
article imported, — a position hereafter consid- 
ered. The reserved powers of the states in 
the regulation of their internal affairs must 
be exercised consistently with the exercise of 
the powers delegated to the United States. 
If there be a conflict, the powers delegated 
must prevail, being so much authority tiiken 
from the states by the express sanction of 
their people; for the constitution itself de- 
clares that laws made in pursuance of it 
shall be the supreme law of the land. But 
those powers which authorize legishition 
touching the health, morals, good order, and 
peace of their people were not delegated, 
and are so essential to the existence and pros- 
perity of the states that it is not to be pre- 
sumed that they will be encroached upon sO' 
as to impair their reasonable exercise. How 
can these reserved powers be reconciled with 
the conceded power of congress to regulate 
interstate commerce? As said above, the 
state cannot exclude an article from com- 
merce, and consequently from importation, 
simply by declaring that its policy recjuires 
such exclusion; and yet its regulations re- 
specting the possession, use, and sale of any 
article of commerce may be as minute and 
strict as required by the nature of the article, 
and the liability of injury from it for the 
safety, health, and morals of its people. In 
the opinion of the court it is stated that the 
effect of the right of importation upon the 
asserted right, as a consequence thereof, to 
sell the article imported is not involved in 
this case, and therefore it is not necessary to 
express any opinion on the subject. The 
case, it is true, can be decided, and has been 
decided, without expressing an opinion on 
that subject; but with great deference to my 
associates, I must say that I think its con- 
sideration is presented, and to some extent 
required, to meet the argument that the 
right of importation, because carrying the 
right to sell the article imported, is incon- 
sistent with the right of the state to prohibit 
the sale of the article absolutely, as held in 
the Kansas case. With respect to most sub- 
jects of commerce, regulations may be adopt- 
ed touching their use and sale when import- 
ed, wliichi will afford all the protection and 
security desired, without going to the extent 



ENUMERATED POWERS OE CONGRESS. 



55 



of absolute prohibition. It is not found dif- 
ficult, even with the most dangerous articles, 
to provide such minute and stringent regula- 
tions as will guard the public from all harm 
from them. Arsenic, dynamite, powder, and 
nitro-glycerin are imported into every state, 
under such restrictions as to their transporta- 
tion and sale as to render it safe to deal in 
them. There may be greater difficulty in 
regulating the use and sale of intoxicating 
liquors; and I admit that whenever the use 
of an aiticle cannot be regulated and con- 
trolled so as to insure the health and safety 
of society, it may be prohibited, and the ar- 
ticle destroyed. 

That the right of importation carries with 
it the right to sell the article imported does 
not appear to me doubtful. Of course I am 
speaking of an article that is in a healthy 
condition, for Avhen it has become putrescent 
or diseased it has ceased to be an article of 
commerce, and it may be destroyed, or its 
use prohibited. To assert that, under the 
constitution of the United States, the im- 
portation of an article of commerce cannot 
be prohibited by the states, and yet to hold 
that when imported its use and sale can be 
prohibited, is to declare that the right which 
the constitution gives is a barren one, to be 
used only so far as the burden of transpoita- 
tion is concerned, and to be denied so far as 
any benefits from such transportation are 
sought. The f ramers of the constitution nev- 
er intended that a right given should not 
be fully enjoyed. In Brown v. Maryland, 
12 Wheat. 447, Chief Justice Marshall, in de- 
livering the opinion of the court, speaking 
of the commercial ■ power of congress, and 
after observing that it is co-extensive with 
the subject on which it acts, and cannot be 
stopped at the exterior boundary of a state, 
but must enter its interior, said: "If this 
power reaches the interior of a state, and 
may be there exercised, it must be capable 
of authorizing the sale of those articles 
which it introduces. Commerce is inter- 
course; one of its most ordinary ingredients 
is traffic. It is inconceivable that the power 
to authorize this traffic, when given in the 
most comprehensive terms, with the intent 
that its efficacy should be complete, should 
cease at the point when its continuance is 
indispensable to its value. To what pur- 
pose should the power to allow importation 
be given, unaccompanied with the power to 
authorize a sale of the thing imported? Sale 
is the object of importation, and is an es- 
sential ingredient of that intercourse of 
which 'importation constitutes a part. It is 
as essential an ingredient, as indfspensable 
to the existence, of the entire thing, then, as 
importation itself. It must be considered as 
a component part of the power to regulate 
commerce. Congress has a right, not only 
to authorize importation, but to authorize the 
importer to sell. * * * The power claim- 
ed by the state is, in its nature, in conflict 
with that given to congress; and the greater 



or less extent in which it may be exercised 
does not enter into the inquiry concerning its 
existence. We think, then, that if the power 
to authorize a sale exists in congress, the 
conclusion that the right to sell is connect- 
ed with the law permitting importation, as 
au inseparable incident, is inevitable." And 
the chief justice added: "We suppose the 
principles laid down in this case to apply 
equally to importations from a sister state." 
Page 449. 

Assuming, therefore, as correct doctrine, 
that the right of importation carries the right 
to sell the article imported, the decision in 
the Kansas case may perhaps be reconciled 
with the one in this case by distinguishing 
the power of the state over property created 
within it, and its power over property im- 
ported; its power in one case extending, 
for the protection of the health, morals, and 
safety of its people, to the absolute prohibi- 
tion of the sale or use of the article, and in 
the other extending only to such regulations 
as may be necessary for the safety of the 
community, until it has been incorporated 
into and become a part of the general prop- 
erty of the state. However much this dis- 
tinction may be open to criticism, it fur- 
nishes, as it seems to me, the only way in 
which the two decisions can be reconciled. 
There is great difficulty in drawing the line 
precisely where the commercial power of 
congress ends, and the power of the state be- 
gins. The same difficulty was experienced 
in Brown, v. Maryland, in drawing a line be- 
tween the restriction on the states to lay a 
duty on imports and their acknowledged pow- 
er to tax persons and property. In that case' 
the court said that the two,— the power and 
the restriction,— though distingiiishable when 
they did not approach each other, might, like 
the interA^ening colors between white and 
black, approach so nearly as to perplex the 
understanding as colors perplex the vis- 
ion, in marking the distinction between 
them; but as the distinction existed, it must 
be marked as the cases arise. And after 
observing that it might be premature to state 
any rule as being iiniversal in its applica- 
tion, the court held as sufficient for that case 
that when the importer had so acted upon 
the thing imported that it had become in- 
corporated and mixed up with the mass of 
property in the country, it had lost its dis- 
tinctive character as an import, and had be- 
come subject to the taxing power of the 
state; but that while remaining the property 
of the importer, in his warehouse in the orig- 
inal form or package in which it was import- 
ed, a tax upon it was plainly a duty on im- 
ports. So, in the present case, it is perhaps 
impossible to stiite any rule which would de- 
termine in all cases where the right to sell 
an imported article under the commercial 
power of the federal government ends, and 
the power of the state to restrict further sale 
has commenced. Perhaps no safer rule can 
be adopted than the one laid down in Brown 



66 



TRF POWEKS OF CONGKESS. 



V. Maryland, that the commercial power con- 
tinues imtil the articles imported have be- 
come mingled with and incorporated into 
the general property of the state, and not 
afterwards. And yet it is evident that the 
value of the importation will be materially 
affected if the article imported ceases to be 
under the protection of the commercial pow- 
er upon its sale by the importer. There will 
be little inducement for one to purchase 
from the importer, if immediately afterwards 
he can himself be restrained from selling the 
article imported; and yet the power of the 
state must attach when the imported article 
has become mingled with the general prop- 
erty Avithin its limits, or its entire independ- 
ence in the regulation of its internal affairs 
must be abandoned. The ditttculty and em- 
barrassment which may follow must be met 
as each case arises. 

In the License Cases, reported in 5 How. 
GOO, this court held that the states could not 
only regulate the sales of imported liquors, 
bxit could prohibit their sale. The judges 
differed in their views in some particulars, 
but the majority were of opinion that the 
states had authority to legislate upon sub- 
jects of interstate commerce uutil congress 
had acted upon them; and as congress had 
not acted, the regulation of the states was 
valid. The doctrine thus declared has been 
moditied since by repeated decisions. The 
doctrine now firmly established is that, 
where the subject upon which congress can 
act under its commercial power is local in 
its nature or sphere of operation, such as har- 
bor pilotage, the improvement of harbors, 
the establishment of beacons and buoys to 
guide vessels in and out of port, the con- 
struction of bridges over navigable rivers, the 
erection of wharves, piers, and docks, and 
the like, which can be properly regulated 
only by special provisions adapted to their 
localities, the state can act until congress 
interferes, and supersedes its authority; but 
where the subject is national in its charac- 
ter, and admits and requii'os uniformity of 
regulation, affecting alike all the states, such 
as transportation between the states, in- 
cluding the importation of goods from one 
state into another, congress can alone act 
upon it, and provide the needed regulations. 
The absence of any law of congress on the 
subject is equivalent to its declaration that 
commerce in that matter shall be free. Thus 
the absence of regulations as to interstate 
commerce with reference to any particular 



subject is taken as a declaration that the im- 
portation of that article into the states shall 
be unrestricted. It is only after the impor- 
tation is completed, and the property import- 
ed has mingled with and become a part of 
the general property of the state, that its 
regulations can act upon it, except so far 
as may be necessary to insure safety in the 
disposition of the import until thus mingled. 
Cooley V. Board, etc., 12 How. 2U9, 319; 
State Freight Tax Cases, 15 AVall. 232, 271; 
Welton V. Missouri, 91 U. S. 275-282; Rail- 
road Co. V. Husen, 95 U. S. 465, 469; Mobile 
V. Kimball, 102 U. S. 691, 697; Ferry Co. v. 
Pennsylvania, 114 U. S. 196, 203, 5 Sup. Ct. 
S2(); Brown v. Houston, 114 U. S. G22, 6:^1, 5 
Sup. Ct. 1091; Walling v. Michigan, 116 U. 
S. 446, 455, 6 Sup. Ct. 454; Pickard v. Car 
Co., 117 U. S. 34, 6 Sup. Ct. 635; Hallway 
Co. V. Illinois, 118 U. S. 557, 7 Sup. Ct. 4; 
Bobbins v. Taxing Dist., 120 U. S. 489, 7 
Sup. Ct. 592. It Is a matter of history that 
one of the great objects of the formation of 
the constitution was to secure uniformity of 
commercia' c-^ulations, and thus put an end 
to ^.;^.icave and hostile discriminations by 
one state against the produc-ts of other 
states, and against their importation and 
sale. "It may be doubted," says Chief Jus- 
tice Marshall, "whether nny of the evils pro- 
ceeding from the feebj.'^H>ss of the federal 
government contribiited more to that great 
revolution which induced the present system 
than the deep and general conviction that 
commerce ought to be regulated by congress. 
It is not, therefore, matter of surprise that 
the grant should be as extensive as the mis- 
chief, and should comprehend all foreign 
commerce and all commerce among the 
states. To construe the power so as to im- 
pair its etlicacy would tend to defeat an ob- 
ject, in the attainment of which the Ameri- 
can government took, and justly took, that 
strong interest which arose from a full con- 
viction as to its necessity." Brown v. Ma- 
ryland. 12 Wheat. 446. To these views I 
may add, that if the states have the power 
asserted, to exclude from importation with- 
in their limits any articles of commerce be- 
cause in their judgment the articles ma.v be 
injurious to their interests or policy, they 
may prescribe conditions upon which such 
importation will be admitted, and thus es- 
tablish a system of duties as hostile to free 
commerce among the states as any that ex- 
isted previous to the adoption of the consti- 
tution. 



KEGULATION OF COMMERCE. 



57 



GIBBONS T. OGDEN.i 

(9 Wheat. 1.) 

Supreme Court of the United States. Feb. 
Term, 1824. 

This was a bill filed by Aaron Ogden in 
the court of chancery of the state of New 
York against Thomas Gibbons to enjoin de- 
fendant from navigating the waters of the 
state of New York with boats propelled by 
fire or steam. Complainant asserted an ex- 
clusive right to navigate those waters^ by 
boats of that description, as assignee of the 
right created by several acts of the legisla- 
ture of the state of New York securing that 
privilege to Robert R. Livingston and Robert 
Fulton. There was a decree for complain- 
ant, which was atfirmed by the court for the 
trial of impeachments and correction of er- 
rors of the state of New York, and defend- 
ant brought error. Reversed and bill dis- 
missed. 

Webster and Wirt, Atty. Gen., for plaintiff. 
Oakley & Emmett, for defendant. 

Mr. Chief .Justice MARSHALL delivered 
the opinion of the court. 

The appellant contends that this decree is 
erroneous, because the laAvs which purport 
to give the exclusive privilege it sustains, are 
repugnant to the constitution and laws of the 
United States. 

They are said to be repugnant — 

1. To that clause in the constitution which 
authorizes congress to regulate commerce. 

2. To that which authorizes congress to 
promote the progress of science and useful 
arts. 

The state of New York maintains the con- 
stitutionality of these laws; and their legisla- 
ture, their council of revision, and their 
judges, have repeatedly concurred in this 
opinion. It is supported by great names — by 
names which have all the titles to consider- 
ation that A'irtue, intelligence, and office, can 
bestow. No tribunal can approach the deci- 
sion of this question, Avithout feeling a just 
and real respect for that opinion which is 
sustained by such authority; but it is the 
province of this court, while it respects, not 
to bow to it implicitly; and the judges must 
exercise, in the examination of the subject, 
that understanding which Providence has be- 
stowed upon them, with that independence 
which the people of the United States ex- 
pect from this department of the govern- 
ment. • 

As preliminary to the very able discus- 
sions of the constitution which we have 
heard from the bar, and as having some in- 
fluence on its construction, reference has 
been made to the political situation of these 
states, anterior to its formation. It has been 



1 Opinion of Mr. Justice Johnson omitted. 



said that they were sovereign, were com- 
pletely independent, and were connected 
with each other only by a league. This is 
true. But, when these allied sovereigns con- 
verted their league into a government, when 
they converted their congress of ambassa- 
dors, deputed to deliberate on their common 
concerns, and to recommend measures of 
general utility, into a legislature, empowered 
to enact laws on the most interesting sub- 
jects, the whole character in which the states 
appear underwent a change, the extent of 
which must be determined by a fair consid- 
eration of the instrument by which that 
change was effected. 

This instrument contains an enumeration of 
powers expressly granted by the people to 
their government. It has been said that 
these powers ought to be construed strictly. 
But why ought they to be so construed? Is 
there one sentence in the constitution which 
gives countenance to this rule? In the last 
of the enumerated powers, that which grants, 
expressly, the means for carrying all others 
into execution, congress is authorized "to 
make all laws which shall be necessary and 
proper" for the purpose. But this limita- 
tion on the means which may be used, is 
not extended to the powers which are com- 
f erred; nor is there -one sentence in the con- 
stitution, which has been pointed out by the 
gentlemen of the bar, or which we have been 
able to discern, that prescribes this rule. 
We do not, therefore, think ourselves justi- 
fied in adopting it. What do gentlemen 
mean by a strict construction? If they con- 
tend only against that enlarged construction, 
which wvuld extend words beyond their nat- 
ural and obvious import, we might question 
the application of the term, but should not 
controvert the principle. If they contend for 
that narrow construction which, in support 
of some theory not to be found in the con- 
stitution, would deny to the government 
those powers which the words of the grant, 
as usually understood, import, and which are 
consistent with the general views and ob- 
jects of the instrument; for that narrow 
construction, which would cripple the gov- 
ernment, and render it unequal to the objects 
for which it is declared to be instituted, and 
to which the powers given, as fairly under- 
stood, render it competent; then we cannot 
perceive the propriety of this strict construc- 
tion, nor adopt it as the rule by which the 
constitution is to be expounded. As inen 
whose intentions require no concealment, 
generally employ the words which most di- 
rectly and aptly express the ideas they in- 
tend to convey, the enlightened patriots who 
framed our constitution, and the people who 
adopted it, must be understood to have em- 
ployed words in their natural sense, and to 
have intended what they have said. If, from 
the imperfection of human language, there 
should be serious doubts respecting the ex- 
tent of any given power, it is a well settled 
rule that the objects for which it was given. 



68 



THE POWERS OF CONGRESS. 



especially when those objects are expressed 
in the instrument itself, should have great 
influence in the construction. We know of 
no reason for excluding this rule from the 
present case. The grant does not convey 
power which might be beneficial to the 
grantor, if retained by himself, or which can 
enure solely to the benefit of the grantee; 
but is an investment of power for the gen- 
eral advantage, in the hands of agents se- 
lected for that purpose; which power can 
never be exercised by the people themselves, 
but must be placed in the hands of agents, 
or lie dormant. We know of no rule for con- 
struing the extent of such powers, other than 
is given by the language of the instrument 
which confers them, taken in connection 
with the purposes for which they were con- 
ferred. 

The words are: "Congress shall have pow- 
er to regulate commerce Avith foreign nations, 
and among the several states, and with the 
Indian tribes." 

The subject to be regulated is commerce; 
and our constitution being, as was aptly said 
at the bar, one of enumeration, and not of 
definition, to ascertain the extent of the 
power, it becomes necessary to settle the 
meaning of the word. The counsel for the 
appellee would limit it to traffic, to buying 
and selling, or the interchange of commodi- 
ties, and do not admit that it comprehends 
navigation. This would restrict a general 
term, applicable to many objects, to one of 
its significations. Commerce, undoubtedly, 
is traffic, but it is something more: it is in- 
tercourse. It describes the commei'cial inter- 
couise between nations, and i)arts of nations, 
in all its branches, and is regulated by pre- 
scribing rules for carrying on that inter- 
course. The mind can scarcely conceive a 
system for regulating commerce between na- 
tions, which shall exclude all laws concern- 
ing navigation, which shall be silent on the 
admission of the vessels of the one nation 
into the ports of the other, and be confined 
to prescribing rules for the conduct of indi- 
viduals, in the actual employment of buying 
and selling, or of barter. 

If commerce does not include navigation, 
the government of the Union has no direct 
power over that subject, and can make no 
law prescribing what shall constitute Amer- 
ican vessels, or requiring that they sliall be 
navigated by American seamen. Yet this 
power has been exercised from the com- 
mencement of the government, has been ex- 
ercised with the consent of all, and has 
been understood by all to be a commercial 
regulation. All America understands, and 
has uniformly understood, the word "com- 
merce," to comprehend navigation. It was 
so understood, and must have been so im- 
derstood, when the constitution was framed. 
The power over commerce, including naviga- 
tion, was one of the primary objects for 
which the people of America adopted their 
government, and must have been contem- 



plated in forming it. The convention must 
have used the word in that sense, because 
all have understood it in that sense; and 
the attempt to restrict it comes too late. 

If the opinion that "commerce," as the 
word is used in the constitution, compre- 
hends navigation also, requires any addition- 
al confirmation, that additional confirmation 
is, we think, furnished by the words of the 
instrument itself. 

It is a rule of construction acknowledged 
by all, that the exceptions from a power 
mark its extent; for it would be absurd, as 
welt as useless, to except from a granted 
power that which Avas not granted— that 
which the words of the grant could not com- 
prehend. If, then, there are in the consti- 
tution plain exceptions from the power over 
navigation, plain inhibitions to the exercise 
of that power in a particular way, it is a 
proof that those who made these exceptions, 
and prescribed these inhibitions, understood 
the power to Avhich they applied as being 
granted. 

The 9th section of the 1st article declares 
that "no preference shall be giA-en, by any 
regulation of commerce or revenue, to the 
ports of one state over those of another." 
This clause cannot be understood as applica- 
ble to those laws only which are passed for 
the purposes of revenue, because it is ex- 
pressly applied to commercial regulations; 
and the most obvious preference which can 
be given to one port over another, in regu-' 
lating commerce, relates to navigation. But 
the subsequent part of the sentence is still 
more explicit. It is, "nor shall A^essels bound 
to or from one state, be obliged to enter, 
clear, or pay duties, in another." These 
Avords have a direct reference to naviga- 
tion. 

The universally acknoAvledged power of 
the goA'ernmeut to impose embargoes, must 
also be considered as shoAving that all 
America is united in that construction which 
comprehends navigation in the Avord com- 
merce. Gentlemen liaA'e said, in argument, 
that this is a bianch of the war-making 
poAver, and that an embargo is an instru- 
ment of Avar, not a regulation of trade. 

That it may be, and often is, used as an 
instrument of Avar, cannot be denied. An 
embargo may be imposed for the purpose of 
facilitiiting the equipment or manning of a 
fleet, or for the purpose of concealing the 
progress of an expedition preparing to sail 
from a particular port. In these, and in sim- 
ilar cases, it is a military instrument, and 
partakes of the nature of Avar. But all em- 
bargoes are not of this description. They 
are sometimes resorted to Avlthout a vicAV to 
Avar, and with a single vicAV to commerce. 
In such case, an embargo is no more a AA'ar 
measure than a merchantman is a shi]) of 
Avar, because both are vessels Avhich navi- 
gate the ocean with sails and .seamen. 

When congress imposed that embargo 
which, for a time, engaged the attention of 



EEGULATION OP COMMERCE. 



59 



every man in the United States, ttie avowed 
object of tlae law was, tlie protection of com- 
merce, and tlie avoiding of war. By its 
friends and its enemies it Avas treated as a 
commercial, not as a war measure. Tlie 
persevering earnestness and zeal with which 
it was opposed, in a part of our country 
which supposed its interests to be vitally 
affected by the act, cannot be forgotten. A 
want of acuteness in discovering objections 
to a measure to which they felt the most 
deep-rooted hostility, will not be imputed to 
those who were arraj^ed in opposition to this. 
Yet they never suspected that navigation 
was no branch of trade, and was, there- 
fore, not comprehended in the power to reg- 
ulate commerce. They did, indeed, contest 
the constitutionality of the act, but, on a 
principle which admits the construction for 
which the appellant contends. They denied 
that the particular law in question was 
made in pursuance of the constitution, not 
because the power could not act directly on 
vessels, but because a perpetual embargo 
was the annihilation, and not the regulation 
of commerce. In terms, they admitted the 
applicability of the words used in the con- 
stitution to vessels; and that, in a case 
which produced a degree and an extent of 
excitement, calculated to draw forth every 
principle on which legitimate resistance 
could be sustained. No example could more 
strongly illustrate the universal understand- 
ing of the American people on this svibject. 

The word used in the constitution, then, 
comprehends, and has been always under- 
stood to comprehend, navigation, within its 
meaning; and a power to regulate naviga- 
tion is as expressly granted as if that term 
had been added to the word "commerce." 

To what commerce does this power ex- 
tend? The constitution informs us, to com- 
merce "with foreign nations, and among the 
several states, and with the Indian tribes." 

It has, we believe, been universally admit- 
ted that these words comprehend every spe- 
cies of commercial intercourse between the 
United States and foreign nations. No sort 
of trade can be carried on between this 
country and any other, to which this power 
does not extend. It has been truly said 
that commerce, as the word is used in the 
constitution, is a unit, every part of which is 
indicated by the term. 

If this be the admitted meaning of the 
word, in its application to foreign nations, it 
mush carry the same meaning throughout 
the sentence, and remain a unit, unless there 
be some plain intelligible cause which alters 
it. 

The subject to which the power is next 
applied, is to commerce "among the several 
states." The word "among" means inter- 
mingled with. A thing which is among oth- 
ers, is intermingled with them. Commerce 
among the states, cannot stop at the external 
boundary line of each state, but may be in- 
troduced into the interior. 



It is not intended to say that these words 
comprehend that commerce which is com- 
pletely internal, which is carried on be- 
tween man and man in a state, or between 
different parts of the same state, and which 
does not extend to or affect other states. 
Such a power would be inconvenient, and is 
certainly unnecessary. 

Comprehensive as the word "among" is,- it 
may very properly be restricted to that com- 
jmerce which concerns more states than one. 
The phrase is not one which would probably 
have been selected to indicate the complete- 
ly interior traffic of a state, because it is 
not an apt phrase for that pui'pose; and the 
enumeration of the particular classes of com- 
merce to which the power was to be ex- 
tended, would not have been made, had the 
intention been to extend the power to every 
description. The enumeration presupposes 
something not enumerated; and that some- 
thing, if we regard the language, or the sub- 
ject of the sentence, must be the exclusively 
internal commerce of a state. The genius 
and character of the whole government 
seem to be, that its action is to be applied to 
all the external concerns of the nation, and 
to those internal concerns which affect the 
states generally; but not to those which are 
completely within a particular state, which 
do not affect other states, and Avith which it 
is not necessary to interfere, for the pur- 
pose of executing some of the general poAv- 
ers of the goA-ernment. The completely in- 
ternal commerce of a state, then, may be 
considered as reserved for the state itself. 

But, in regulating commerce Avith foreign 
nations, the poAver of congress does not stop 
at the jurisdictional lines of the several 
states. It Avould be a very useless poAver, if 
it could not pass those lines. The commerce 
of the United States Avith foreign nations, is 
that of the Avhole United States. Every dis- 
trict has a right to participate in it. The 
deep streams Avhich penetrate our country 
in every direction, pass through the interior 
of almost every state in the Union, and fur- 
nish the means of exercising this right. If 
congress has the power to regulate it, that 
poAver must be exercised Avhenever the sub- 
ject exists. If it exists Avithin the states, if 
a foreign voyage may commence or terminate 
at a port within a state, then the poAver of 
congress may be exercise<I Avithin a state. 

This principle is, if possible, still more 
clear, Avhen applied to commerce "among 
the several states." They either join each 
other, in Avhich case they are separated by a 
mathematical line, or they are remote from 
each other, in which case other states lie 
betAveen them. What is commerce "among" 
them; and hoAV is it to be conducted? Can 
a trading expedition betAveen tAA'o adjoining 
states, commence and terminate outside of 
each ? And if the trading intercourse be be- 
tween two states remote from each other, 
must it not commence in one, terminate in the 
other, and probably pass through a third? 



60 



THE POWERS OF CONGRESS. 



Commerce among the states, must, of neces- 
sity, be commerce with the states. In the 
regiihition of trade with the Indian tribes, 
tlie action of the law, especially when the 
constitution was made, was chiefly within a 
state. The power of congress, then, Avhat- 
ever it may be, must be exercised within the 
ttM-ritorial jurisdiction of the several states. 
Tlie sense of the nation on this subject, is 
une(iuivocally manifested by the provisions 
made in the laws for transporting goods, by 
land, between Baltimore and Providence, be- 
tween New York and Philadelphia, and be- 
tween Philadelphia and Baltimore. 

We are now arrived at the inquiry— what 
is this power? 

It is the power to regulate; that is, to pre- 
scribe the rule by which commerce is to be 
governed. This power, like all others vest- 
ed in congress, is complete in itself, may be 
exercised to its utmost extent, and acknowl- 
edges no limitations other than are prescrib- 
ed in the constitution. These are express- 
ed in plain terms, and do not affect the ques- 
tions which arise in this case, or which have 
been discussed at the bar. If, as has al- 
ways been understood, the sovereignty of 
congress, though limited to specified objects, 
is plenary as to those objects, the power 
over commerce with foreign nations, and 
among the several states, is vested in con- 
gress as absolutely as it Avould be in a sin- 
gle government, having in its constitution 
the same restrictions on the exercise of the 
power as are found in the constitution of 
the United States. The wisdom and the dis- 
cretion of congress, their identity with the 
people, and the influence which their con- 
stituents possess at elections, are. in this, as 
in many other instances, as that, for exam- 
ple, of declaring war, the sole restraints on 
which they have relied to secure them from 
its abuse. They are the restraints on which 
the people must often rely solely, in all rep- 
resentative governments. 

The power of congress, then, comprehends 
navigation within the limits of every state 
in the Union, so far as that navigation may 
be. in any manner, connected with "com- 
merce with foreign nations,* or among the 
several states, or with the Indian tribes." 
It may, of conse'quence, pass the jurisdiction- 
al line of New York, and act upon the very 
watei's to which the prohibition now under 
consideration applies. 

But it has been urged with great earnest- 
ness that, although the power of congress 
to regiilate commerce with foreign nations, 
and among the several states, be coextensive 
with the subject itself, and have no other 
limits than are prescribed in the constitu- 
tion, yet the states may severally exercise 
the same power, within their respective j\j- 
risdictions. In support of this argument, it 
is said that they possessed it as an insepara- 
lile attribute of sovereignty, before the 
formation of the constitution, and still re- 
tain it, except so far as they have surren- 



dered it by that instrument; that this prin- 
ciple results from the nature of the govern- 
ment, and is secured by the tenth amend- 
ment; that an affirmative grant of pow^r 
is not exclusive, unless in its own nature it 
be such that the continued exercise of it by 
the former possessor is inconsistent with the 
grant, and that this is not of that description. 
The appellant, conceding these postulates, 
except the last, contends that full power to 
} regulate a particular subject, implies the 
! whole power, and leaves no residuum; that 
I a grant of the whole is incompatible with 
i the existence of a right in another to any 
I part of it. 

I Both parties have appealed to the consti- 
tution, to legislative acts, and judicial deci- 
sions; and have drawn arguments from all 
these sources, to support and illustrate the 
propositions they respectively maintain. 

The grant of the power to lay and collect 
taxes is, like the power to regulate com- 
merce, made in general terms, and has nev- 
er been understood to interfere with the ex- 
ercise of the same power by the states; and 
hence has been drawn an argument which 
has been applied to the question under con- 
sideration. But the two gi'ants are not, it 
is conceived, similar in their terms or their 
nature. Although many of the powers for- 
merly exercised by the states are transferred 
to the government of the Union, yet the state 
governments remain, and constitute a most 
important part of our system. The power 
of taxation is indispensable to their exist- 
ence, and is a power which, in its own na- 
ture, is capable of residing in, and being 
exercised by, different authorities at the 
same time. We are accustomed to see it 
placed, for different purposes, in different 
hands. Taxation is the simple operation of 
taking small portions from a perpetually ac- 
cumulating mass, susceptible of almost in- 
finite division; and a power in one to take 
what is necessaiy for certain purposes, is 
not, in its nature, incompatible with a power 
in another to take what is necessary for otli- 
er purposes. Congress is authorized to lay 
and collect taxes, &c., to pay the debts, and 
provide for the common defence and gen- 
eral welfare, of the United States. This 
does not interfere with the power of the 
states to tax for the sxipport of their own 
governments; nor is the exercise of that 
power by the states, an exercise of any por- 
tion of the power that is granted to the 
United States. In imposing taxes for state 
purposes, they are not doing what congress 
is empowered to do. Congress is not empow- 
ered to tax for those purposes which are 
within the exclusive province of the states. 
When, then, each government exercises the 
power of taxation, neither is exercising the 
power of the other. But, when a state ijro- 
ceeds to regulate commerce with foreitrn 
nations, or among the several states, it is 
exercising the very power that is granted 
to congress, and is doing the very thing 



REGULATION OF COMMERCE. 



61 



which congress is authorized to do. There 
is no analogy, then, between the power of 
taxation and the power of regulating com- 
merce. 

In discussing the question whether this 
power is still in the states, in the case un- 
der consideration, we may dismiss from it 
the inquiry, whether it is surrendered by 
the mere grant to congTess, or is retained 
until congress shall exercise the power. We 
may dismiss that inquiry because it has 
been exercised, and the regulations which 
congress deemed it proper to make, are now 
in full operation. The sole question is, can 
a state regulate commerce with foreign na- 
tions and among the states, while congress 
is regulating it? 

The counsel for the respondent answer 
this question in the affirmative, and rely 
. very much on the restrictions in the lOtn 
section as supporting their opinion. They 
say, very truly, that limitations of a power 
furnish a strong argument in favor of the 
existence of that power, and that the sec- 
tion which prohibits the states from laying- 
duties on imports or exports, proves that 
this power might have been exercised, had 
it not been expressly forbidden; and, conse- 
quently, that any other cooM^eeial regula- 
tion not expressly forbic^uen, lo vrhich the 
original power of the state was competent, 
may still be mad\ 

That this restri tion shows the opinion of 
the convention, ti>at a state might impose 
duties on exi^oi i;s and imports if not ex- 
pressly forbid ; a will be conceded; but 
that it follows ;u" a consequence, from this 
concession, that a state may regulate com- 
merce wit^; foreign nations and among the 
states, caiinot be admitted. 

We must first determine whether the act 
of laying "duties or imposts on imports or 
exports," is considered in the constitution as 
a branch of the taxing power, or of the 
power to regulate commerce. We think it 
very clear, that it is' considered as a branch 
of the taxing power. It is so treated in the 
first clause of the 8th section: "Congress 
shall have power to lay and collect taxes, 
dutieS; imposts, and excises;" and before 
commerce is mentioned, the rule by which 
the exercise of this power must be governed 
is declared. It is, that all duties, imposts, 
and excises, shall be uniform. In a sepa- 
rate clause of the enumeration, the power to 
regulate commerce is given, as being entire- 
ly distinct from the right to levy taxes and 
imposts, and as being a new power not be- 
fore conferred. The constitution, 4hen, con- 
siders these powers as substantive, and dis- 
tinct from each other; and so places them 
in the enumeration it contains. The power 
of imposing duties on imports is classed 
with the power to levy taxes, and that 
seems to be its natural place. But the pow- 
er to levy taxes could never be considered 
as abridging the right of the states on that 
subject; and they might, consequentlj^ have 



exercised it by levying duties on imports or 
exports, had the constitution contained no 
prohibition on this subject. This prohibi- 
tion, then, is an exception from the acknowl- 
edged power of the states to levy taxes, not 
from the questionable power to regulate 
commerce. 

"A duty of tonnage" is as much a tax as 
a duty on imports or exports; and the rea- 
son which induced the prohibition of those 
taxes extends to this also. This tax may be 
imposed by a state with the consent of con- 
gress; and it may be admitted that congress 
cannot give a right to a state in virtue of 
its own powers. But a duty of tonnage be- 
ing part of the power of imposing taxes, its 
prohibition may certainly be made to de- 
pend on congress, without affording any im- 
plication respecting a power to regulate 
commerce. It is true that duties may often 
be, and in fact often are, imposed on ton- 
nage, with a view to the regulation of com- 
merce; but they may be also imposed with 
a view to revenue; and it was, therefore, a 
prudent precaution to prohibit the states 
from exercising this power. The idea that 
the same measure might, according to cir- 
cumstances, be arranged with different 
classes of power, was no novelty to the fram- 
ers of our constitution. Those illustrious 
statesmen and patriots had been, many of 
them, deeply engaged in the discussions 
which preceded the war of our Revolution, 
and all of them were well read in those dis- 
cus-sions. The right to regulate commerce, 
even by the imposition of duties, was not 
controverted; but the right to impose a duty 
for the purpose of revenue, produced a war 
as important, perhaps, in its consequences 
to the human race, as any the world has 
ever witnessed. 

These restrictions, then, are on the taxing 
power, not on that to regulate commerce; 
and presuppose the existence of that which 
they restrain, not of that which they do 
not purport to restrain. 

But the inspection laws are said to be 
regulations of commerce, and are certainly 
recognized in the constitution as being pass- 
ed in the exercise of a power remaining with 
the states. 

That inspection laws may have a remote 
and Considerable influence on commerce will 
not be denied; but that a power to regu- 
late commerce is the source from which the 
right to pass them is derived, cannot be ad- 
mitted. The object of inspection laws is to 
improve the quality of articles produced by 
the labor of a country; to fit them for ex- 
portation; or it may be, for domestic use. 
They act upon the subject before it becomes 
an arti< ■ ^ of foreign commerce, or of com- 
merce among the states, and prepare it for 
that purpose. They form a portion of that 
immense mass of legislation, which em- 
braces every thing within the territory of a 
state, not surrendered to a general govern- 
ment; all which can be most ads'antageous- 



62 



THl': POWERS OF CONGRESS. 



ly exercised by the states themselves. In- 
spection hiws, quarantine laws, health laws 
of every descri])tion, as well as laws for 
reyiilatiui^: the internal commerce of a state, 
and those which respect turnpike roads, fer- 
ries. &c., are component parts of this mass. 

No direct general power over these objects 
is f;ranted to congress; and, consequently, 
they remain subject to state legislation. If 
the legislative power of the Union can reach 
Them, it must be for national purposes; it 
must be where the power is expressly given 
for a special purpose, or is clearly incidental 
to some power which is expressly given. It 
Is obvious that the government of the Un- 
ion, in the exercise of its express powers, 
that, for example, of regulating (ommerce 
with foreign nations and among the states, 
may use means that may also be employed 
by a state, in the exercise of its acknowl- 
edged powers; that, for example, of regu- 
lating commerce within the state. If con- 
gress license vessels to sail from one port 
to another in the same stat,f, the act is sup- 
posed to be, necessarily, incidental to the 
power expressly granted to congress, and 
implies no claim of a direct power to regu- 
late the purely intei'ual commerce of a state, 
■or to act directly on its system of police. So 
if a state, in passing laws on sul)jects ac- 
knowledged to be within its control, and 
witli a view to those subjects, shall adopt a 
measure of the same character Avith one 
Avhich congress may adopt, it does not de- 
rive its authority from the particular power 
which has been granted. l)ut from some 
other which remains with the state, and 
may be executed by the same means. All 
experience shows that the same measures, or 
measiu'es scarcely distinguishable from each 
other, may flow from distinct powers; but 
this does not prove that the powers them- 
selves are identical. Although the means 
used in their execution may sometimes ap- 
proach each other so nearly as to be con- 
founded, there are other situations in which 
they are sufRcieutly distinct to establish 
their individuality 

In our complex system, presenting the rare 
and ditttcult scheme of one general govern- 
ment, wliose action extends over the whole, 
but which possesses only certain enumerated 
powers; and of numerous state governments, 
which retain and exercise all poAvers not del- 
egated to the Union, contests respecting 
power must arise. Were it even otherwise, 
the measures taken by the respective gov- 
ernments toexecute their acknowledged pow- 
ers, would often be of the same description, 
and might, sometimes, interfere. This, how- 
ever, does not prove that the one is exercis- 
ing, or has a right to exei-cise, the powers of 
the other. 

The acts of congress, passed in 171)6, and 
17i)9 (1 Stat. 474, G19). empoAvering and di- 
recting the officers of the general govern- 
ment to conform to, and assist in the execu- 
tion of the quarantine and health laAVs of a 



state, proceed, it is said, upon the idea that 
these laAvs are constitutional. It is undoubt- 
edly true that they do proceed upon that 
idea; and the constitutionality of such laws 
has never, so far as we are informed, been 
denied. But they do not imply an acknowl- 
edgment that a state may rightfully regulate 
commerce with foreign nations, or among the 
states; for they do not imply that such laws 
are an exercise of that poAver, or enacted 
Avith a Aiew to it. On the contrary, they are 
treated as quarantine and health laAVS, are 
so denominated in the acts of congress, and 
are considered as floAving from the acknoAvl- 
edged poAver of a state, to provide for the 
health of its citizens. But as it Avas ap- 
parent that some of the provisions made for 
this purpose, and in A'irtue of this power, 
might interfere with, and be affected by the 
laAvs of the United States, made for the i"eg- 
ulation of commerce, congress, in that spirit 
of harmony and conciliation, Avhich ought 
alAA'ays to characterize the conduct of go\"- 
ernments standing in the relation Avhich that 
of the Union and those of the states bear to 
each other, has directed its officers to aid 
in the execution of these laAvs; and has, in 
some measure, adapted its OAvn legislation to 
this object, by making provisions in aid of 
those of the states. But in making these pro- 
A'isions the opinion is unequivocally mani- 
fested, that congress may control the state 
laAvs, so far as it may be necessary to con- 
trol them, for the regulation of commerce. 

The act passed in l.S()3 (8 Stat. p. ")"JU), pro- 
hibiting the inq)ortation of slaves into any 
stat(j Avhich shall itself pi-ohibit their impor- 
tation, implies, it is said, an admission, that 
the states possessed the poAver to exclude 
or admit them; from Avhich it is inferx'ed 
that they possess the same power Avith re- 
spect to other articles. 

If this inference Avere correct; if this pow- 
er Avas exercised, not under any particular 
clause in the constitution, but in A'irtue of a 
genei'al right over the subject of commerce, 
to exist as long as the constitution itself, it 
might now be exercised. Any state might 
noAV import African slaA'es into its OAvn ter- 
ritory. But it is obvious that the poAver of 
the states over this subject, previous to the 
year 1808, constitutes an exception to the 
poAver of congress to regulate commerce, and 
the exception is expressed in such Avords as 
to manifest clearly the intention to continue 
the preexisting right of the states to admit 
or exclude for a limited period. The Avords 
are, "the migration or importation of such 
persons as any of the states uoav existing, 
shall think proper to admit, shall not be pro- 
hibited by the congress prior to the year 
1808." The Avhole object of the exception is, 
to preserve the poAver to those states Avhich 
might be disposed to exercise it; and its lan- 
guage seems to the court to convey this idea 
une(]uivocally. The possession of tliis par- 
ticular poAver tlien, during the time limited 
in the constitution, cannot be admitted to 



KEGULATION OF COMMERCE. 



63 



prove the possession of any other similar 
power. 

It has been said that the act of August 7, 
1789 (1 Stat. 54), acknowledges a concurrent 
power in the states to regulate the conduct 
of pilots, and hence is inferred an admission 
of their concurrent right with congress to 
regulate commerce with foreign nations, and 
amongst the states. But this inference is 
not, we think, justified by the fact. 

Although congress cannot enable a state 
to legislate, congress may adopt the provi- 
sions of a state on any subject. When the 
government of the Union was brought into 
existence, it found a system for the regula- 
tion of its pilots in full force in every state. 
The act which has been mentioned, adopts 
this system, and gives it the same validity 
as if its provisions had been specially made 
by congress. But the act, it may be said, 
is prospective also, and the adoption of laws 
to be made in future, presupposes the right 
in the maker to legislate on the subject. 

The act unquestionably manifests an in- 
tention to leave this subject entirely to the 
states, until congress should think proper 
to interpose; but the very enactment of such 
a law indicates an opinion that it was neces- 
sary; that the existing system would not be 
applicable to the new state of things, unless 
expressly applied to it by congress. But this 
section is confined to pilots within the "bays, 
inlets, rivers, har])ors, and ports of the Unit- 
ed States," which are, of course, in whole 
or in part, also within the limits of some 
particular state. The acknowledged power 
of a state to regulate its police, its domestic 
trade, and to govern its own citizens, may 
enable it to legislate on this subject, to a 
considerable extent; and the adoption of its 
system by congress, and the application of it 
to the whole subject of commerce, does not 
seem to the court to imply a right in the 
states so to apply it of their OAvn authority. 
But the adoption of the state system being- 
temporary, being only "until further legis- 
lative provision shall be made by congress," 
shows, conclusively, an opinion that congress 
could control the whole subject, and might 
adopt the system of the states, or provide 
one of its own. 

A state, it is said, or even a private citizen, 
may construct lighthouses. But gentlemen 
must be aware that, if this proves a power 
in a state to regulate commerce, it proves 
that the same power is in the citizen. States, 
or individuals who own lands, may, if not 
forbidden by law, erect on those lands what 
buildings they please; but this pcwwer is en- 
tii-ely distinct from that of regulating com- 
merce, and may, we presume, be restrained, 
if exercised so as to produce a public mis- 
chief. 

These acts were cited at the bar for the 
purpose of showing an opinion in congress 
that the states possess, concurrently with 
the legislature of the Union, the power to 
regulate commerce with foreign nations and 



among the states. Upon reviewing them, we 
think they do not establish the proposition 
they were intended to prove. They show 
the opinion that the states retain powers en- 
abling them to pass the laws to which allu- 
sion has been made, not that those laws 
proceed from the particular power which has 
been delegated to congress. 

It has been contended, by the counsel for 
the appellant, that, as the word to "regulate" 
implies in its nature full power over the 
thing to be regulated, it excludes, necessari- 
ly, the action of all others that would per- 
form the same operation on the same thing. 
That regulation is designed for the entire re- 
sult, applying to those parts Avhich remain 
as they were as well as to those which are 
altered. It produces a uniform whole, 
which is as much disturbed and deranged by 
changing what the regulating power designs 
to leave untouched, as that on which it has 
operated. 

There is great force in this argument, and 
the court is not satisfied that it has been re- 
futed. 

Since, however, in exercising the power of 
regulating their own purely internal affairs, 
whether of trading or police, the states may 
sometimes enact laws, the validity of which 
depends on their interfering with, and be- 
ing contrary to, an act of congress passed 
in pursuance of the constitution, the court 
will enter upon the inquiry, whether the 
laws of New York, as expounded by the high- 
est tribunal of that state, have, in their ap- 
plication to this case, come into collision 
with an act of congress, and deprived a citi- 
zen of a right to which that act entitles him. 
Should this collision exist, it will be imma- 
terial whether those laws were passed in 
virtue of a concurrent power "to regulate 
commerce with foreign nations and among 
the several states," or, in virtue of a power 
to regulate their domestic trade and police. 
In one case and the other, the acts of New 
York must yield to the law of congress; and 
the decision sustaining the privilege they con- 
fer, against a right given by a law of the 
Union, must be ei'roneous. 

This opinion has been frequently expressed 
in this court, and is founded as well on the 
nature of the government as on the words of 
the constitution. In argument, however, it 
has been contended that, if a law passed by 
a state, in the exercise of its acknowledged 
sovereignty, comes into conflict with a law 
passed by congress in pursuance of the con- 
stitution, they affect the subject, and each 
other, like equal opposing powers. 

But the framers of our constitution fore- 
saw this state of things, and provided for it 
by declaring the supremacy not only of it- 
self, but of the laws made in pursuance of it. 
The nullity of any act, inconsistent with the 
constitution, is produced by the declaration 
that the constitution is the supreme law. 
The appropriate application of that part of 
the clause which confers the same supremacy 



64 



THE POWERS OF CONGRESS. 



on laws and treaties, is to such acts of the 
state legislatures as do not transcend their 
poAvers, but, though enacted in the execution 
of acknowledged state powers, interfere 
with, or are contrary to the laws of congress, 
made in pursuance of the constitution', or 
some treaty made under the authority of the 
United States. In every such case, the act 
of congress, or the treaty, is supreme; and 
the law of the state, though enacted in the 
exercise of powers not controverted, must 
j'leld to it. 

In pursuing this inquiry at the bar, it has 
been said that the constitution does not con- 
fer the right of intercoiirse between state 
and state. That right cierives its so "^e from 
those laws whose autwcfiy is ackno. dged 
by civilized man throughout the world. This 
is true. The constitution found it an exist- 
ing right, and gave to congress the power 
to regulate it. In the exercise of this power, 
congress has passed "An act for enrolling or 
licensing ships or vessels to be employed in 
the coasting trade and fisheries, and for reg- 
ulating the sa_ne." The counsel for the re- 
spondent contend, that this act does not give 
the right to ATiil from port to iwrt, but con- 
fines itself io regulating a preexisting right, 
so far only as to confer certain privileges on 
enrolled and licensed vessels, in its exercise. 

It will at once occur that, when a legisla- 
ture attaches certain privileges and exemp- 
tions to the exercise of a right over Avhich its 
control is absolute, the law must imply a 
power to exercise the right. The privileges 
are gone if liie right itself be annihilated. 
It would be contrary to all reason, and to 
the course of human affairs, to say that a 
state is unable to strip a vessel of the par- 
ticular privileges attendant on the exercise 
of a right, and yet may annul the right itself; 
that the state of New York cannot prevent 
an enrolled and licensed vessel, proceeding 
from Elizabethtown, in New Jersey, to New 
Yorlv, from enjoying, in her course and on 
her entrance into port, all the privileges con- 
ferred by the act of congress; but can shut 
her up in her own port, and prohibit alto- 
gether her entering the waters and ports of 
another state. To the court it seems very 
clear that the whole act on the subject of 
the coasting trade, according to those princi- 
ples Avliicli govern the construction of stat- 
utes, implies, unequivocally, an authority to 
licensed vessels to carry on the coasting 
trade. 

But we will proceed briefly to notice those 
sections which bear more directly on the 
subject. 

The first section declares that vessels en- 
rolled by virtue of a previous law. and cer- 
tain other vessels, enrolled as described in 
that act, and having a license in force, as is 
by the act required, "and no others, shall be 
deemed ships or vessels of the United States, 
entitled to the privileges of ships or vessels 
employed in the coasting trade." 

This section seems to the court to contain 



a positive enactment that the vessels it de- 
scribes shall be entitled to the privileges of 
ships or vessels employed in the coasting 
trade. These privileges cannot be separated 
from the trade, and cannot be enjoyed, un- 
less the trade may be prosecuted. The grant 
of the privilege is an idle, empty form, con- 
veying nothing, unless it convey the right to 
which the privilege is attached, and in the 
exercise of which its whole value consists. 
To construe these words otherwise than as 
entitling the ships or vessels described, to 
carry on the coasting trade, would be, we 
think, to disregard the apparent intent of 
the act. 

The 4th section directs the proper officer 
to grant to a A-essel qiialified to receive it, "a 
license for carrying on the coasting trade;" 
and prescril)es its form. After reciting the 
compliance of the applicant with the previous 
requisites of the law, the operative words of 
the instrument are "I^icense is hereby grant- 
ed for the said steam-boat Bellona, to be em- 
ployed in carrying on the coasting trade for 
one year from the date hereof, and no longer." 

These are not the words of the officer; 
they are the words of the legislature; and 
convey as explicitly the authority the act in- 
tended to give, and operate as effectually, as 
if they had been inserted in any other part 
of the act, than in the lirense itself. 

The word "license," means permission, or 
authority; and a license to do any particular 
thing, is a permission or authority to do that 
thing; and if granted by a person having 
power to grant it. transfers to the grantee the 
right to do whatever it purports to authorize. 
It certainly transfers to him all the right 
which the grantor can transfer, to do what is 
within the terms of the license. 

Would the validity or effect of such an in- 
strument be questioned by the respondent, if 
executed by persons claiming regularly under 
the laws of New York? 

The license must be understood to be what 
it purports to be, a legislative authority to 
the steam-boat Bellona, "to be employed in 
carrying on the coasting trade, for one year 
from this date." 

It has been denied that these words author- 
ize a voyage fi-om New Jersey to New York. 
It is true, that no ports are specified; but it 
is equally true, that the words used are per- 
fectly intelligible, and do confer such au- 
thority as unquestionably, as if the ports had 
been mentioned. Tlie coasting trade is a 
term well understood. The law has defined 
it; and all know its meaning perfectly. The 
act describes, with great minuteness, the va- 
rious opei'ations of a vessel engaged in it; 
and it cannot, we think, be doubted, that a 
voyage from New Jersey to New York, is one 
of those operations. 

Notwithstanding the decided language of 
the license, it has also been maintained, that 
it gives no right to trade; and that its sole 
purpose is to confer the American character. 

The answer given to this argument, that 



REGULATION OF COMMERCE. 



the American character is conferred bj^ the 
enrolment, and not by tlie license, is, we 
think, founded too clearly in the words of 
the law, to require the support of any addi- 
tional observations. The enrolment of ves- 
sels designed for the coasting trade, corre- 
sponds precisely with the registration of ves- 
sels designed for the foreign trade, and re- 
quires every circumstance wiiich can consti- 
tute tlie American cliaracter. The license can 
be granted only to vessels already enrolled, 
if they be of the burden of twenty tons and 
upwards; and requires no circumstance es- 
sential to the American character. The ob- 
ject of the license, then, cannot be to ascer- 
tain the character of the vessel, but to do 
what it professes to do, that is, to give per- 
mission to a vessel already proved by her 
enrolment to be American, to carry on the 
coasting trade. 

But if the license be a permit to carry on 
the coasting trade, the respondent denies 
that these boats were engaged in that trade, 
or that the decree xmder consideration has 
restrained them from prosecuting it. The 
boats of the appellant were, we are told, em- 
ployed in tlie transportation of passengers; 
and this is no part of that commerce which 
congress may regulate. 

If, as our whole course of legislation on 
this subject shows, the power of congress has 
been universally understood in America, to 
comprehend navigation, it is a very persua- 
sive, if not a conclusive argument, to prove 
that the construction is correct; and if it be 
correct, no clear distinction is perceived be- 
tween the power to regulate vessels employ- 
ed in transporting men for hire, and proper- 
ty for hire. The subject is transferred to 
congress, and no exception to the grant can 
be admitted, which is not proved by the 
words or the nature of the thing. A coasting 
vessel employed in the transportation of pas- 
sengers, is as much a portion of the Ameri- 
can marine, as one employed in the transpor- 
tation of a cargo; and no reason is perceived 
why such vessel should be withdrawn from 
the regulating power of that government, 
which has been thought best fitted for the 
purpose generally. The provisions of the law 
respecting native seamen, and respecting 
ownership, are as applicable to vessels carry- 
ing men, as to vessels carrying manufactures; 
and no reason is perceived Avhy the power 
over the subject should not be placed in the 
same hands. The argument urged at the 
bar, rests on the foundation that the power 
of congress does not extend to navigation, as 
a branch of comnierce, and can onlj^ be ap- 
plied to that subject incidentally and occa- 
sionally. But if that foundation be removed, 
we must show some plain, intelligible dis- 
tinction, supported by the constitution, or by 
reason, for discriminating between the pow- 
er of congress over vessels employed in navi- 
gating the same seas. We can perceive no 
such distinction. 

If we refer to the constitution, the infer- 

SMITH, CONST. LA W — 5 



ence to be drawn from it is rather against 
the distinction. Tlie section which restrains 
congress from prohibiting the migration or 
importation of such persons as any of the 
states may think proper to admit, until the 
year 1808, has always been considered as an 
exception from the power to regulate com- 
merce, and certainly seems to class migration 
with importation. Migration applies as ap- 
propriately to voluntary, as importation does 
to involuntary, arriA^als; and so fur as an ex- 
ception from a power proves its existence, 
this section proves that the power to regulate 
commerce applies equally to the regulation of 
vessels employed in transporting men, who 
pass from place to place voluntarily, and to 
those who pass invohmtarily. 

If the power reside in congress, as a por- 
tion of the general grant to regulate com- 
merce, then acts applying that power to ves- 
sels generally, must be construed as com- 
prehending all vessels. If none appear to be 
excluded by the language of the act, none 
can be excluded by construction. Vessels 
have always been employed, to a greater or 
less extent, in the transportation of passen- 
gers, and have never been supposed to be, 
on that account, withdrawn from the control 
or protection of congress. Packets which 
ply along the coast, as well as those which 
make voyages between Europe and America, 
consider the transportation of passengers as 
an important part of their business. Yet it 
has never been suspected that the general 
laws of navigation did not apply to them. 

The Duty Act, §§ 23, 46 (1 Stat. 644, 661), 
contains provisions respecting passengers, 
and shov>'S that vessels which transport them 
have the same rights, and must perform the 
same duties, with other vessels. They are 
governed by the general laws of navigation. 

In the progress of things, this seems to 
have grown into a particular employment, 
and to have attracted the particular atten- 
tion of government. Congress was no longer 
satisfied with comprehending vessels enga- 
ged specially in this business, within those 
provisions which were intended for vessels 
generally; and on the 2d of March, 1819, 
passed "an act regulating passenger ships 
and vessels." 3 Stat. 488. This wise and 
humane law provides for the safety and com- 
fort of passengers, and for the communica- 
tion of every thing concerning them which 
may interest the government, to the depart- 
ment of state, but makes no provision con- 
cerning the entry of the vessel, or her con- 
duct in the waters of the United States. 
This, we think, shows conclusively tlie sense 
of congress, (if indeed, any evidence to that 
point could be required,) that tlie pre-exist- 
ing regulations comprehended passenger ships 
among others; and in prescribing the same 
duties, the legislature must have considered 
them as possessing the same rights. 

If, then, it were even true, that the Bellona 
and the Stoudinger were employed exclusive- 
ly in the conveyance of passengers between 



66 



THE POWERS OF CONGRESS. 



Xew York and New Jersey, it would not fol- 
low that this occupation did not constitute a 
pai-t of the coasting- trade of the United 
States, and was not protected by the license 
annexed to the answer. But we cannot per- 
ceive liow the occupation of these vessels can 
be drawn into question, in the case before 
the couit. The laws of New York, which 
{jrant the exclusive privilege set up by the 
respondent, take no notice of the employ- 
ment of vessels, and relate only to the prin- 
ciple by which they are propelled. Those 
laws do not inquire whether vessels are en- 
gaged in transporting men or merchandise, 
but whether they are moved by steam or 
Wind. If by the former, the Avat(>rs of New 
York are closed against them, though their 
cargoes be dutiable goods, which the laws 
of the United States permit them to enter 
and deliver in New Y'ork. If by the latter, 
those waters are free to them, though they 
should carry passengers only. In conformi- 
ty with the law, is the bill of the plaintiff in 
the state court. The bill does not complain 
that the Bellona and the Stoudinger carry 
passengers, but that they are moved by 
steam. This is the injury of which he com- 
plains, and is the sole injury against the con- 
tinuance of which he asks relief. The bill 
does not even allege, specially, that those 
vessels were employed in the transportation 
of passengers, but says, generally, that they 
were employed "in the transportation of pas- 
sengers, or otherwise." The answer avers, 
only, that they Avere employed in the coast- 
ing trade, and insists on the right to carry 
on any trade authorized by the license. No 
testimony is taken, and the writ of injunc- 
tion and decree restrain these licensed ves- 
sels, not from carrying passengers, but from 
being moved through the waters of New York 
by steam, for any purpose whatever. 

Tlie questions, then, whether the convey- 
ance of passengers be a part of the coasting 
trade, and whether a vessel can be protected 
in that occupation by a coa.sting license, are 
not, and cannot be, raised in this case. The 
real and sole question seems to be. whether 
a steam machine in actual use, deprives a 
vessel of the privileges conferred by a li- 
cense. 

In considering this question, the first idea 
Which pre.sents itself, is that the laws of 
congress for the regulation of connnerce, do 
not look to the pi'inciple by which vessels 
are moved. That subject is left entirelj' to 
individual discretion; and. in that vast and 
complex system of legislative enactment con- 
cerning it. which end)races every thing that 
the legislature thought it necessary to notice, 
there is not, we believe, one word respecting 
the peculiar principle by which vessels are 
propelled through the water, except what 
may be found in a single act (2 Stat. 094), 
granting a particulai- privilege to steam-boats. 
With this exception, every act. either pre- 
scribing duties, or granting privileges, applies 
to every vessel, whether navigated bv the 



] instrumentality of wind or fire, of sails or 
I machinery. The whole weight of proof, then, 
j is thrown upon him who would introduce a 
distinction to which ■ the words of the law 
! give no coimtenance. 

I If the real difference could be admitted to 
I exist between vessels carrying passengers 
i and others, it has already been observed 
! that there is no fact in this case which can 
I bring up that question. And, if the occupa- 
! lion of steam-boats be a matter of such gen- 
: eral notoriety that the com't may be presum- 
i ed to know it, although not specially inform- 
! ed by the record, then we deny that the 
transportation of passengers is their exclu- 
; sive occupation. It is a matter of general 
■ history, that, in our western waters, their 
' principal employment is the transportation 
of merchandise; and all know, that in the 
1 waters of the Atlantic they are frequently so 
employed. 

But all inquiry into this subject seems to 
the court to be put completely at rest, by the 
j act already mentioned, entitled, "An act for 
; the enrolling and licensing of steam-boats." 
This act authorizes a steam-boat employed, 
I or intended to be employed, only in a river 
; or bay of the United States, owned wholly 
! or in part by an alien, resident within the 
i United States, to be enrolled and licensed as 
' if the same belonged to a citizen of the Unit- 
i ed States. 

I This act demonstrates the opinion of con- 
I gress, that steam-boats may be enrolled and 
i licensed, in common with vessels using sails. 
i They are, of course, entitled to the same 
j privileges, and can no more be restrained 
! from navigating waters, and entering ports 
\ Avhich are free to such vessels, than if they 
i were wafted on their voyage by the winds, 
I instead of being propelled by the agency of 
I fire. The one element may be as legitimate- 
! ly used as the other, for every commei'cial 
purpose authorized by the laws of the Union; 
and the act of a state inhibiting the use of 
: either to any vessel having a license under 
' the act of congi'ess, comes, we think, in di- 
rect collision with that act. 
As this decides the cause, it is unnecessary 
i to enter in an examination of that part of the 
constitution which emix)wers congress to pro- 
mote the progress of science and the useful 
arts. 

The court is aware that, in stating the 
train of reasoning by which we have been 
conducted to this result, much time has been 
consumed in the attempt to demonstrate 
propositions which may have been thought 
axioms. It is felt that the tediousness in- 
separal)le from the endeavor to i)rove that 
which is already clear, is imputable to a con- 
siderable part of this opinion. But it Avas 
unaAoidable. The conclusion to Avhich we 
have come depends on a chain of principles 
Avhich it was necessary to preserve unbroken; 
and. although some of them Avere thought 
nearly self-evident, the magnitude of the 
question, the Aveight of character belonging 



KEGULATION OF COMMERCE. 



67 



to those from wliose .iudgment we dissent, 
and the argument at the bar, demanded that 
we should assume nothing. 

Powerful and ingenious minds, taking as 
postulates that the powers expressly granted 
to the government of the Union, are to be 
contracted by construction into the narrowest 
possible compass, and that the original pow- 
ers of the states are retained, if any possible 
construction will retain them, may, by a 
course of well-digested but refined and meta- 
physical reasoning founded on these prem- 
ises, explain away the constitution of our 



country, and leave it a magnificent structure, 
indeed, to look at, but totally unfit for use. 
They may so entangle and perplex the un- 
derstanding, as to obscure principles which 
were before thought qinte plain, and induce 
doubts where, if the mind were to pursue 
Its own course, none would be perceived. In 
such a case, it is peculiarly necessary to re- 
cur to safe and fimdamental principles to 
sustain those principles, and, when sustain- 
ed, to make them the tests of the arguments 
to be examined. 



68 



THE POWERS OF COXGRESS. 



PENSACOLA TEL. CO. v. WESTERN UN- 
ION TEL. CO.i 

(96 U. S. 1.) 

Supreme Court of the United States. Oct. 
Term, 1877. 

Appeal from circuit court of the United 
States for the Northern district of Florida. 

This was a bill filed by the Pensacola Tel- 
egraph Company against the Western Union 
Telegraph Company to enjoin the erection of 
a telegraph line under Act Cong. July 20, 
ISGG, upon a right of way through counties 
in the state of Florida in which complainant 
claimed the exclusive right to erect and 
maintain telegraph lines by virtue of Act 
Fla. Dec. 11, 18G6. There was a decree dis- 
missing the bill, and complainant appealed. 
Affirmed. 

Charles W. Jones, for appellant. Perry 
Belmont, contra. 

Mr. Chief Justice WAITE delivered the 
opinion of the court. 

Congress has power "to regulate commerce 
with foreign nations and among the several 
states" (Const, art. 1, § 8, par. 3); and "to 
establish post-offices and post-roads" (Id., 
par. 7). The constitution of the United States 
and the laws made in pm-suance thereof are 
the supreme law of the land. Article G, par. 
2. A law of congress made in pursuance of 
the constitution suspends or overrides all state 
statutes with which it is in conflict. 

Since the case of Gibbons v. Ogden, 9 
Wheat. 1, it has never been doubted that 
commercial intercourse is an element of com- 
merce which comes within the regulating 
power of congress. Post-offices and post- 
roads are established to facilitate the trans- 
mission of intelligence. Both commerce and 
the postal service are placed within the pow- 
er of congress, because, being national in 
their operation, they should be under the pro- 
tecting care of the national government. 

The powers thus granted are not confined 
to the instrumentalities of commerce, or the 
postal service known or in use when the con- 
stitution was adopted, but they keep pace 
with the progress of the country, and adapt 
themselves to the new developments of time 
and circumstances. They extend from the 
horse with its rider to the stage-coach, from 
the sailing-vessel to the steamboat, from the 
coach and the steamboat to the railroad, and 
from the railroad to the telegraph, as these 
new agencies are successively brought into 
use to meet the demands of increasing popu- 
lation and wealth. Tbey were intended for 
the government of the business to which they 
relate, at all times and under all circumstan- 
ces. As they were intrusted to the general 
government for the good of the nation, it is 
not only the right, but the duty, of congress 
to see to it that intercourse among the states 



ted. 



Dissenting opinion of Mr. Justice Field omit- 



and 'the transmission of intelligence are not 
obsti-ucted or unnecessarily encumbered by 
state legislation. 

The electric telegraph marks an epoch in 
the progress of time. In a little more than a 
quarter of a century it has changed the hab- 
its of business, and become one of the neces- 
sities of commerce. It is indispensable as a 
means of intercommunication, biit especial- 
ly is it so in commercial transactions. The 
statistics of the business before the recent re- 
duction in rates show that more than eighty 
per cent of all the messages sent by tele- 
gi-aph related to commerce. Goods are sold 
and money paid uixvn telegraphic orders. 
Contracts are made by telegraphic corre- 
spondence, cargoes secured, and the move- 
ment of ships directed. The telegraphic an- 
nouncement of the markets abroad regulates 
prices at home, and a prudent merchant rare- 
ly enters upon an important transaction with- 
out using the telegraph freely to secure in- 
formation. 

It is not only important to the people, but 
to the government. By means of it the 
heads of the departments in Washington are 
kept in close communication with all their 
various agencies at home and abroad, and 
can know at almost any hour, by inquiry, 
what is transpiring anywhere that affects 
the interest they have in charge. Under 
such circumstances, it cannot for a moment 
be doubted that this powerful agency of com- 
merce and intercommunication comes within 
the controlling power of congress, certainly 
as against hostile state legislation. In fact, 
fi'om the beginning, it seems to have been 
assumed that congress might aid in develop- 
ing the system; for the first telegraph line 
of any considerable extent ever erected was 
built between Washington and Baltimore, 
only a little more than thirty years ago, with 
money appropriated by congress for that pur- 
pose (5 Stat. 618); and large donations of 
land and money have since been made to aid 
in the construction of other lines (12 Stat. 
489, 772; 13 Stat. 3G5; 14 Stat. 292). It is 
not necessary now to inquire whether con- 
gress may assume the telegraph as part of 
the postal seniee, and exclude all others from 
its use. The present case is satisfied, if we 
find that congress has power, by appropriate 
legislation, to prevent the states from placing 
obstructions in the way of its usefulness. 

The government of the United States, with- 
in the scope of its powers, operates upon ev- 
ery foot of territory under its jurisdiction. 
It legislates for the whole nation, and is not 
embarrassed by state lines. Its peculiar du- 
ty is to protect one part of the country from 
encroachments by another upon the national 
rights which belong to all. 

The state of Florida has attempted to con- 
fer upon a single coii^oration the exclusive 
right of transmitting intelligence by tele- 
graph over a <iertain portion of its territory. 
This embraces the two westernmost counties 
of the state, and extends from Alabama to 



REGULATION OT COMMERCE. 



69 



the Gulf. No telegraph line can cross the 
state from east to west, or from north to 
south, within these counties, except it passes 
over this territory. Within it is situated an 
important seaport, at which business centres, 
and with wliich those engaged in commercial 
pursuits have occasion more or less to com- 
municate. The United States have there al- 
so the necessary machinery of the national 
government. They have a navy-yard, forts, 
custom-houses, courts, post-offices, and the 
appropriate officers for the enforcement of 
the laws. The legislation of Florida, if sus- 
tained, excludes all commercial intercourse 
t)y telegraph between the citizens of the oth- 
er states and those residing upon this terri- 
tory, except by the emplojanent of this cor- 
poration. The United States cannot com- 
municate with their own officers by telegraph 
except in the same way. The state, there- 
fore, clearljr has attempted to regulate com- 
mercial intercourse between its citizens and 
those of other states, and to control the trans- 
mission of all telegraphic correspondence 
within its own jurisdiction. 

It is unnecessary to decide how far this 
might have been done if congress had not 
ficted upon the same subject, for it has acted. 
The statute of July 24, 1866, in effect, 
amounts to a prohibition of all state monopo- 
lies in this particular. It substantially de- 
clares, in the interest of commerce and the 
convenient transmission of intelligence from 
place to place by the government of the 
United States and its citizens, that the erec- 
tion of telegraph lines shall, so far as state 
interference is concerned, be fi*ee to all who 
will submit to the conditions imposed bj^ con- 
gress, and that corporations organized un- 
der the laws of one state for constructing 
and operating telegraph lines shall not be 
excluded by another from prosecuting their 
business within its jurisdiction, if they ac- 
cept the terms proposed by the national gov- 
ernment for this national privilege. To this 
extent, certainly, the statute is a legitimate 
regulation of commei'cial intercourse among 
the states, and is appropriate legislation to 
carry into execution the powers of congress 
over the postal service. It gives no foreign 
corporation the right to enter upon private 
property without the consent of the owner 
and erect the necessary structures for its 
business; but it does provide, that, when- 
ever the consent of the owner is obtained, no 
state legislation shall prevent the occupation 
of post-roads for telegraph purposes by such 
corporations as are willing to avail them- 
selves of its privileges. 

It is insisted, however, that the statute ex- 
tends only to such military and post roads as 
are upon the public domain; but this, we 
think, is not so. The language is, "Through 
and ovei- any portion of the public domain 
of the United States, oyer and along any of 
the military or post roads of the United 
States which have been or may hereafter be 
declared such by act of congress, and over, 



under, or across the navigable streams or 
waters of the United States." There is noth- 
ing to indicate an intention of limiting the 
effect of the words employed, and they are, 
therefore, to be given their natural and ordi- 
nary signification. Read in this way, the 
grant evidently extends to the public domain, 
the military and post roads, and the naviga- 
ble waters of the United States. These are 
all within the dominion of the national gov- 
ernment to the extent of the national pow- 
ers, and are, therefore, subject to legitimate 
congressional regulation. No question arises 
as to the autiiority of congress to provide for 
the appropriation of private property to the 
uses of the telegraph, for no such attempt 
has been made. The use of public property 
alone is granted. If private property is re- 
quired, it must, so far as the present legisla- 
tion is concerned, be obtained by private ar- 
rangement with its owner. No compulsory 
proceedings are authorized. State sovereign- 
ty under the constitution is not interfered 
with. Only national privileges are granted. 

The state law in question, so far as it con- 
fers exclusive rights upon the Pensacola 
Company, is certainly in conflict with this 
legislation of congress. To that extent it is, 
therefore, inoperative as against a corpora- 
tion of another state entitled to the privileges 
of the act of congress. Such being the case, 
the charter of the Pe'nsacola Company does 
not exclude the Western Union Company 
from the occupancy of the right of way of 
the Pensacola and Louisville Railroad Com- 
pany under the arrangement made for that 
purpose. 

We are aware that, in Paul v. Virginia, 8 
Wall. 168, this court decided that a state 
might exclude a corporation of another state 
from its jurisdiction, and that corporations 
are not within the clause of the constitution 
which declares that "the citizens of each 
state shall be entitled to all privileges and 
immunities of citizens in the several states." 
Article 4, § 2. That was not, however, the 
case of a corporation engaged in inter-state 
commerce; and enough was said by the court 
to show, that, if it had been, very different 
questions would have been presented. The 
language of the opinion is: "It is undoubted- 
ly true, as stated by counsel, that the power 
conferred upon congress to regulate com- 
merce includes as well commerce carried 
on by corporations as commerce carried on 
by individuals. . . . This state of facts 
forbids tlie supposition that it was intended 
in the grant of power to congress to exclude 
from its control the commerce of corpora- 
tions. The language of the grant makes no 
reference to the instrumentalities by which 
commerce may be carried on: it is general, 
and includes alike commerce by individuals, 
partnerships, associations, and corporations. 
. . . The defect of the argument lies in the 
character of their (insurance companies) bus- 
iness. Issuing a policy of insurance is not a 
transaction of commerce. . . . Such con- 



70 



THE POWERS OF CONGRESS. 



tracts (policies of insurance) are not inter- 
state transactions, though the parties are 
domiciled in different states." 

The questions thus suggested need not be 
considered now, because no prohibitory legis- 
lation is relied upon, except that which, as 
has already been seen, is inoperative. Upon 
principles of comity, the corporations of one 
state are permitted to do business in another, 
unless it conflicts with the law, or unjustly 
interferes with the rights of the citizens of 
the state into which they come. Under such 
circumstances, no citizen of a state can en- 
join a foreign corporation from pursuing its 
business. Until the state acts in its sover- 
eign capacity, individual citizens cannot com- 
plain. The state must determine for itself 
when the public good requires that its im- 
plied assent to the admission shall be with- 



drawn. Here, so far from withdrawing its 
assent, the state, by its legislation of 1874, 
in effect, invited foreign telegraph corpora- 
tions to come in. Whether that legislation, 
in the absence of congressional action, would 
have been sufficient to authorize a foreign 
corporation to construct and operate a line 
within the tAvo counties named, we need not 
decide; but we are clearly of the opinion,, 
that, with such action and a right of way 
secured by private arrangement with the 
owner of the land, this defendant corporation 
cannot be excluded by the present complain- 
ant. 
Decree affirmed. 

Mr. .Justice FIELD and Mr. Justice HUNT 

dissented. 



KEGULATION OF COMMERCE. 



71 



PULLMAN'S PALACE-CAR CO. v. COM- 
MONWEALTH OF PENNSYLVANIA.! 

(11 Sup. Ct. 876, 141 U. S. 18.) 

Supreme Court of the United States. May 25. 
1891. 

In error to the supreme court of the 
fate of Pennsylvania. 

This was an action brought bj'tliestate 
of Pennsylvania against Pullman's Palace 
Car Company, a corporation of Illinois, in 
the court of common pleas of the county 
of Dauphin in the state of Pennsylvania, 
to recover the amount of a tax settled by 
the auditor general and approved by the 
treasurer of that state for the years 1870 
to INSO, inclusive, on the defendant's capi- 
tal stock, taking as the basis <jf assess- 
ment such prop(jrtion of its capital stock 
as the number of miles of railroad over 
which cars were run by the defendant in 
Pennsylvania bore to the whole number 
of miles in this and other states over which 
its cars were run. All these taxes vyere 
levied under successive statutes of Penn- 
sylvania, imposing taxes on capital stock 
of corporati<jns incorporated by the laws 
of Pennsylvania or of any other state, and 
doing business in Pennsylvania, computed 
on a certain percentage of dividends made 
or declared. The taxes for 1870-1874 were 
levied under the statute of May 1,18G8, No. 
69, § 5, which applied to corporations of 
every kind, with certain exceptions not 
material to this case: and fixed the amount 
of the tax at half a mill on every 1 per 
cent, of dividend. P. L. 1868, p. 109. The 
taxes for 1875-1877 were levied undpr the 
statute of April 24, 1874, No. 31, § 4, which 
applied to all corporations in any way 
engaged in the transportation of freight 
or passengers, and fixed the tax at nine- 
tenths of a mill on everv 1 per cent, of div- 
idend. P. L. 1874, p. 70. The taxes for 
1878-1880 were levied under the statutes 
of March 20. 1877, No. 5, § 3, and of June 7, 
1879, No. 122. § 4, applicable to all corpora- 
tions, except building associations, banks, 
savings institutions, and foreign insurance 
companies, and fixing the tax at half a 
mill on each 1 per cent, of dividend of 6 per 
cent, or more on the par value of the capi- 
tal stock, and, when the dividend was less, 
at three mills on a valuation of thecapital 
stock. P. L. 1877, p. 8; P. L. 1879, p. 114. 

A trial by jury was waived, and the case 
submitted to the decision of the court, 
which found the following facts: "The 
defendant is a corporation of the state of 
Illinois, having its principal office in Chi- 
cago. Its business was, during all the time 
for which tax is charged, to furnish sleep- 
ing-coaches and parlor and dining-room 
cars to the various railroad companies, 
with which it contracted on the following 
terms: The defendant furnished the 
coaches and cars, and the railroad com- 
panies attached and made them part of 
their trains, no charge being made by 
either party against the other. The rail- 
road companies collected the usual fare 
from passengers who traveled in their 
coaches and cars, and the defendant col- 

1 Dissenting opinion of Mr. Justice Bradley 
omitted. 



lected a separate charge for the use of the 
seats, sleeping-berths, and other con- 
veniences. Business has been carried on 
continuously by the defendant in this way 
in Pennsylvania since Febi-uary 17, 1870, 
and it has had about 100 coaciies and cars 
engaged in this waj' in the state during 
that time. The cars used in this state 
have, during all the time for which tax is 
charged, been running into, through, and 
out of this state. " Upon these facts the 
court held "that the proportion of the 
capital stock of the defendant invested 
and used in Pennsylvania is taxable un- 
der these acts; and that the amount of 
the tax may be properly ascertained by 
taking as a basis the proportion which 
the number of miles operated by the de- 
fendant in this state bears to the whole 
number of miles operated by it, without 
regard to the question vvhether any par- 
ticular car or cars were used ;" and there- 
fore gave judgment for the state. That 
judgment was affirmed upon writ of error 
by the supreme court of the state, for rea- 
sons stated in its opinion as follows: 
" We think it very clear that the plaintiff 
in error is engaged in carrying on such a 
business within this commonwealth as to 
subject it to the statutes imposing taxe- 
tion. While tlie tax on thecapital stock 
of a company is a tax on its property and 
assets, yet the capital stock of a company 
and its property and assets are not iden- 
tical. The coaches of the company are irs 
property. They are operated within this 
state. They are daily passing from one 
end of the state to the other. They are 
used in performing the ftmctions for which 
the corporation was created. The fact 
that they also areoperated in other states 
cannot wholly exempt them from taxa- 
tion here. It reduces the value of the 
property in this state, justly subject to 
taxation here. This was recognized in 
the court below, and we think the propor- 
tion was fixed according to a just and 
equitable rule." 107 Pa. 8t. 156, 160. Pull- 
man's Palace-Car Company sued out a 
writ of error from this court, and filed six 
assignments of error, the substance of 
which was summed up in the brief of its 
counsel as follows: "Tiie court erred in 
holding that any part of the capital stock 
ol the Pullman Company was subject to 
taxation by the state of Pennsylvania by 
reason of its running any of its cars into, 
out of, or through the state of Pennsyl-, 
vania in the course of their employment in 
the interstate transportation of railway 
passengers. " 

Edward S. Isham, John S. Runnells, and 
Wra. Barry, for plaintiff in error. W. S. 
Kirkpatrick and J. F. Sanderson, for the 
Commonwealth. 

Mr. Justice GEAY, after stating the facta 
as above, delivered tlie opinion of the 
court. 

Upon this writ of error, whether this 
tax was in accordance with the law of 
Pennsylvania is a question on which the 
decision of the highest court of the state is 
conclusive. The only question of which 
this court has jurisdiction is whether the 
tax was in violation of the clause of the 



72 



THE POWERS OF CONGRESS. 



constitution of tlie United States grant- 
ing; to congress the power to regulate 
commerce among the several states. The 
plaintiff in error ronten'ls that its cars 
could be taxed only in the state of Illinois, 
in which it was incorporated, and had its 
principal place of business. No general 
principles of law are bettersettled or more 
fundamental than that thelegislative pow- 
er of every state extends to all property 
witliin its border.s.and that only so far as 
the comity of tiiat state allows can such 
property be affected by the law of any 
other state. The old mile, expressed in the 
maxim tnohiUii sfquiiutur personam , by 
which personal j)ro])erty was regarded as 
subject to the law uf the owner's domicile, 
grew up in the Middle Ages, when mov- 
able propei'ty consisted chiefly of gold and 
jewels, which could beeasily carried by the 
owner from place to place, or secreted in 
s])Ots known only to himself. In modern 
times, since the great increase in amount 
and variety of personal property, not im- 
mediately connected with the person of the 
owner, that rule has yielded more and 
more to the lex situs, — the law of the place 
where the prof)erty is kept and used. 
Green v. Van Buskirk, 5 Wall. oOT, and 7 
Wall. l:Ji); Hervey v. Locomotive Works, 
93 U. S. ()G4; Harkness v. Russell. US U. S. 
668, 079, 7 Sup. Ct. Kep. 51; Walworth v. 
Harris, 129 U. S. :;!55, 9 Sup. Ct. Kep. 840; 
Story, Contl. Laws, § 5.")0; Whart. Contl. 
Laws,{;>j 297-811. As observed by Mr. Jus- 
tice Story, in his commentaries just cited : 
"Although movables are for many pur- 
poses to he deemed tohave no situs except 
that of the domicile of the owner, yet. this 
being but a leyal Hction, it yields when- 
ever it is necessary for the purpose of jus- 
tice that the actual situs of the thing 
should be examined. A nation within 
whose territory any personal property is 
actually situate has an entire dominion 
over it while therein, in point of sovereignty 
and jurisdiction, as it has over immoval)le 
property situate there." ¥ov the pur- 
poses of taxation, as has been repeatedly 
affirmed by this court, i)ersonal property 
may be separated from its owner; and he 
may be taxed on its account at the place 
where it is, although not the place of his 
own domicile, and even if lie is not a citi- 
zen or a resident of the state which im- 
poses the tax. Lane Co. v. Oregon, 7 
Wall. 71,77; Railroad Co. v. Pennsvlvania, 
15 Wall. 800, 828, :^24, 82S; Railroad Co. v. 
Peniston, is Wall. 5, 29; Tappan v. Bank, 
19 Wall. 490, 499; State Railroad Tax 
Cases, 92 U. S. 57."), 607. 60s ; Brown v. 
Houston, 114 U. S. 622, 5 Sup. Ct. Rep. 1091 ; 
Coe V. Errol, 116 U. S. 517, 524, 6 Sup. Ct. 
Rep. 475; Marye v. Railroad Co., 127 C S. 
117, 128, S Sup." Ct. Rep. 1087. It is equally 
well settled that there is nothing in the 
constitution or !aw9 of the United States 
which prevents a state from taxing i)er- 
sonal property employed in interstate or 
fore ;j;n comniercelike otherpersonal prop- 
erty within its jurisdiction. Delaware 
Railroad Tax, IS Wall. 200,282; Telegraph 
Co, V. Texas. 105 U. S. 460, 464; Ferry Co. 
V. Pennsylvania, 114 U. S. 196, 206, 211,5 
Sup. Ct. Reu. S2(); Telegraph Co. v. Attor- 
ney General, 125 U. S. 580, 549, 8 Sup. Ct. 
Rep. 961; Marye v. Railroad Co., 127 U. S. 



117, 124, K Sup. Ct. Rep. 1037: Lehmp v. 
Mobile, 127 U. S. 640. 649, S Sup. Ct. Rep. 
18S0. Ships or vessels, indeed, engaged in 
interstate or foreign commerce upon the 
high seas or other waters which are a 
common highway, and having their home 
port, at which they are registered under" 
the laws of the United States at the dom- 
icile of their owners, in one state, are not 
subject to taxation in anothei- state at 
W'hose ports they incidentally and tempo- 
rarily touch for the i)urv)ose of delivering 
or receiving passengers or freight. But 
that is because they are not, in any prop- 
er sense, abiding within its limits, and 
have no continuous presence or actual .s/fw.s 
within its jurisdiction, and therefore can 
be taxed only at their legal situs, — their 
home port, and the doniicile of their own- 
ers. Hays V. Steam-.Ship Co., 17 How. 
596; St. Louis v. Ferry Co., 11 Wall. 423; 
Morgan v. Parhani, 16 Wall. 471 ; Ferry Co. 
V. East St. Louis, 107 U. S. 865, 2 Sup. Ct. 
Rep. 257; Ferry Co. v. Pennsylvania, 114 U. 
S. 196, 5 Sup. Ct. Rep. S26. Between ships 
and vessels, having their situs fixed by act 
of congress, and their course over nav- 
igable waters, and tcjuching land only in- 
cidentally and temporarily, and cars or 
vehicles of any kind, having no situs so 
fixed, and traversing the land only, the 
distinction is obvious. As has been said 
by this court: "C'ommerce on land be- 
tween the different states is so strikingly 
dissimilar, in many respects, from com- 
merce on water, that it is often difficult to 
regard them in the same aspect in refer- 
ence to the respective constitutional pow- 
ers and duties of the state and federal gov- 
ernments. No doubt commerce by water 
was principally in the minds of those who 
framed and ad(Ji>ted the constitution, al- 
though both its language and spirit em- 
brace commerce by land as well. Mari- 
time transportation requires no artificial 
road-way. Nature has prepared to hand 
that portion of the instrumentality em- 
ployed. The navigable waters of the 
earth are recognized public highwaj's of 
trade and intercourse. No franchise is 
needed to enable the navigator to use 
them. Again, the vehicles of commerce by 
water being instrumentsof intercommuni- 
cation with other nations, the regulation of 
them is assumed by the national legisla- 
ture. So that state interference with 
transportation by water, and especially 
by sea, is at once clearly marked and dis- 
tinctly discernible. But it is different with 
transportation bv land." Railroad Co. v. 
Mar;yland, 21 Wall. 4.j6, 470. 

In Ferry Co. v. Pennsylvania, on which 
the plaintiff in error much relies, the New 
Jersey corporation taxed by the state of 
Pennsylvania, under one of the statutes 
now in question, had no property in Penn- 
sylvania except a lease of a wharf at 
which its steam-boats touched to land 
and receive passengers and fi-eight carried 
aci'oss the Delaware river ; and the differ- 
ence in the facts of that case and of this 
and in the rules applicable was clearly in- 
dicated in the opinion of the coui-t as fol- 
lows: "It is true that the jiroperty of cor- 
porations engaged in foreign or interstate 
commerce, as well as the property of cor- 
porations engaged in other business, is 



REGULATION OF COMMERCE. 



73 



subject to taxation, provided, always, it 
be within the luvisdiction of the state." 
114 U. S. 206, 5 Sup. Ct. Rep. S29. "While it 
is conceded that the property in a state 
belonging to a foreign corporation en- 
gaged in foreign or interstate commerce 
may be taxed equally with like property 
of a domestic corporation engaged in that 
business, we are clear that a tax or other 
burden imposed on the property of either 
corporation because it is used to carry on 
that commerce, or upon the transporta- 
tion of persons or projjcrty, or for the 
navigation of the public waters over 
which the transportation is made, is in- 
valid and void as an interference with and 
an obstruction of the power of congress in 
the I'egulation of such commei'ce. " 114 U. 
»S. 211, .5 Sup. Ct. Rep. S82, Much reliance 
is also placed by the plaintiff in error up- 
on the cases in which this couvt has de- 
cided that citizens or coi'porations of one 
state cannot be taxed by another state 
for a license or privilege to carry on inter- 
state or foreign commerce within its lim- 
its. But in each of those cases the tax 
was not upon the pro))erty employed in 
the business, but upon the right to carry 
on the business at all, and was therefore 
held to impose a direct burden upon the 
conimerce itself. Moran v. New Orleans, 
112 U. S. 69, 74, 5 Sup. Ct. Rep. 88; Pickard 
v. Car Co., 117 U. S. 34, 4:j. 6 Sup. Ct. Rep. 
€3.5; Robbins v. Taxing Dist., 120 U. S. 489, 
497, 7 Sup. Ct. Rep. 592; Leloup v. Mobile, 
127 U. S. 640, 644, 8 Sup. Ct. Rep. 1380. For the 
same reason, a tax upon the gross receipts 
derived from the transportation of pas- 
sengers and goods between one state and 
other states or foreign nations has been 
held to be invalid. Fargo v. Michigan, 121 
U. S. 230, 7 Sup. Ct. Rep. 857; Steam-Ship 
€o. V. Pennsylvania, 122 U. S. 326, 7 Sup 
Ct. Rep. 1118. 

The tax now in question is not a license 
tax or a privilege tax; it is not a tax on 
business or occupation ; it is not a tax on 
or because of the transportation or the 
right of transit of persons or property 
through the state to other states or coun- 
tries. The tax is imposed equally on cor- 
porations doing business within the state, 
whether domestic or foreign, and whether 
engaged in interstate commerce or not. 
The tax on tlie capital of the corporation 
on account of its property within the 
state is, in substance and effect, a tax on 
that property. Ferrj' Co. v. Pennsvl- 
vauia, 114 U. S. 196, 209, 5 Sup. Ct. Rep. 
S2d; Telegraph Co. v. Attorney Ceneral, 
125 U. S. 580, .552, 8 Sup. Ct. Rep.' 961. This 
is not only admitted, but insisted on, by 
the plaintiff in error. 

The cars of this company within the 
state of Pennsylvania are emplo^-ed in in- 
terstate commerce; but their being so em- 
ployed does not exempt them from taxa- 
tion by the state; and the state has not 
taxed them because of their being so em- 
l.)lo3-ed, but because of their being within 
its territory and jurisdiction. The cars 
were continuously and permanently em- 
ployed in going to and fro upon cei'tain 
routes of travel. If they had never passed 
beyond the limits of Pennsylvania, it 
could not be doubted that the state could 
tax them, like other property within its 



borders, notwithstanding they were em- 
ployed in interstate commerce. The fact 
that, instead of stopping at the state 
boundary, they cross that boundary in 
going out and coming back, cannot affect 
the power of the state to levy a tax upon 
them. The state, having the right, for the 
purposes of taxation, to tax any personal 
property found within its jurisdiction, 
without regard to the placeof theowner's 
domicile, could tax the specific cars which 
at a given moment were within itsbor- 
I'lp'^s. TLe route over which the cars 
travel extending beyond the limits of the 
state, particular cars may not remain 
within the state; but the company has at 
all times substantiallj' the same number 
of cars within the state, and continuously 
and constantly uses there a portion of it5 
propertj' ; and it is distinctly- found, as 
matter of fact, that the company continu- 
ously, throughout the periods for which 
these taxes were levied, carried on bus- 
iness in Pennsylvania, and had about 100 
cars within the state. 

The mode which the state of Pennsyl- 
vania adopted to ascertain the proportion 
of the company's property upon which it 
shcndd be taxed in that state was by taking 
as a basis of assessment such proportion 
of the capital stock of the company as the 
number of miles over which it ran cars 
within the state bore to the whole number 
of miles in that and other states over 
which its cars were run. This was a just 
andeiiuitable method of assessment; and, 
if it were adopted by all the states through 
which these cars ran, the company would 
be assessed upon the whole value of its 
capital stock, and no more. The validity' 
of this mode of apportioning such a tax is 
sustained by several decisif)ns of this court 
in cases which came up from the circuit 
courts of the United States, and in which, 
therefore, the jurisdiction of this court ex- 
tended to the determination of the whole 
case, and was not limited, as upon writs 
of error to the state courts, to questions 
under the constitution and laws of the 
United States. 

In the State Railroad Tax Cases, 92 U. 
S. .575, it was adjudged that a statute of 
Illinois, by which a tax on the entire tax- 
able property of a railroad corporation, 
including its rolling stock, capital, and 
franchise, was assessed by the state board 
of equalization, and was collected in each 
municipality in proportion to the length 
of the road within it, was lawful, and not 
in conflict with the constitution of the 
state; and Mr. Justice Milleh, delivering 
judgment, said: "Another fibjection to 
the system of taxation by the state is that 
the rolling stock, capital stock, and fran- 
chise are personal property, and that this, 
with all other personal property, has a 
local situs at the principal place of busi- 
ness (»f the corporation, and can be taxed 
by no other county, city, or town but the 
one where it is so situated. This objec- 
tion is based upon the general rule of law 
that personal property, as to its situs, 
follows the domicile of its owner. It may 
be doubted vei-y reasonably whether such 
a rule can be applied to a railroad corpo- 
ration as between the different localities 
embraced by its line of road. But, after 



74 



THE P0\\ ERS OF CONGRESS. 



all, the rule is merely the law of the state 
which recognizes it; and when it is called 
into operation as to property located in 
one state and owned by a resident of an- 
other, it is a rule of comity in the former 
state rather than an absolute principle in 
all cases. Green v. Van Buskirk, 5 Wall. 
312. Like all other laws of a state, it is 
therefore subject to legislative repeal, 
modification, or limitation; and wiien 
the legislature of Illinois declared that it 
should not prevail in assessing perscuial 
property of railroad companies for taxa- 
tion, it simply exercised an ordinary func- 
tion of legislation. " 92 U. S. «()7, (i()"s. "It 
is further objected that the railroad track, 
capital stock, and franchise is not assessed 
in each county where it lies, according to 
its value there, but according to an aggre- 
gate value of the whole, on Avhich each 
county, city, and town collects taxes ac- 
cording t(j the length of the track within 
its limits." "It may well be doubted 
whether any better mode of determining 
the value of t!iat portion of the track 
within any one county has been devised 
than to ascertain the value of the whole 
road, and apportion the value within the 
county by its relative length to the 
whole." "This court has expressly held 
in two cases, wheie the road of a corpo- 
ration ran through different states, that 
a tax upon the inconje or franchise of the 
road was pro])erly ap()ortioned bj- taking 
the wholeincome or value of thefranchise, 
and the length of the road within each 
state, as the basis of taxatic^n. Delaware 
Railroad Tax, IS Wall. 206; Railroad Co. 
V. Pennsylvania, 21 Wall. 492." 92 U. 8. 
60S, 611. So in Telegiai)h Co. v. Attorney 
General, 125 U. S. .>J0, S Sup. Ct. Rep. 961, 
this ctnirt upheld tlie validity of a tax im- 
l)osed by the state of Massachusetts upon 
the capital stock of a telegrai)h company, 
on account of property owned and used 
by it within the state, taking as the basis 
of assessment such proj)ortion of the value 
of its capital stock as the leugtli of its 
lines within the state bore to tiieir entire 
lengtli throughout the country. 

Even more in point is the case of Marve 
V. Railroad Co., 127 U. S. 117, S Sup. Ct. 
Rep. 10;J7. in which the question was 
wliethei- a railroad company incorporated 
by the state of Maryland, and no part of 
whose own railroad was within the state 
of Virginia, was taxable under general 
laws oi Virginia up<Mi i-olling stock owned 
by the company and employed upon con- 
necting railroads leased by it in that state, 
yet not assigned pei'uianently to those 
roads, but used iuterciiangeably upon 
them and upon roads in other states, as 
the company's necessities required. It 
was held not to be so taxable, solely be- 
cause the tax laws of Virginia apijeared 
upon their face to be limited to railroad 
corporations of that state; and Mr. Jus- 
tice M^TTHKWs, delivering the unanimous 
judgment of the court, said : " It is not de- 
nied, as it cannot be, that the state of Vir- 



ginia has rightful power to levy and col- 
lect a tax upon such property' used and 
found within its territorial limits as this 
property was used and found, if and 
whenever it may choose, by ai)t legisla- 
tion, to exert its authority ovir tiie sub- 
ject. It is quite true, as the situs of the 
Baltimore and Ohio Railroad Company is 
in the state of Maryland, that also, upon 
general principles, is the situs of all its per- 
sonal property; but for purposes of taxa- 
tion, as well as for other purposes, that 
situs may be fixed in whatever locality the 
pi'operty may be brought and used by its 
owner by the law of the [ilace where it is 
found. If the Baltimore and Ohio Rail- 
road Comi)any is permitted by the state 
of Virginia to bring into its territory, and 
there habitually to use and employ, a por- 
tion of its movablepersonal i>roperty, and 
the railroad company clu^oses so to do, it 
would certainly be competent and legiti- 
mate for the state to impcjse upon such 
property, thus used and employed, its fair 
share of the burdens of taxation imi-osed 
upon similar property used in the like 
way by its own citizens. And such a tax 
might be properly assessed and collected 
in cases like the present, where the specific 
and individual items of property so used 
and employed were not continuously the 
same, but were constantly changing, ac- 
cording to the exigencies of the business. 
In such cases the tax might be fixed by an 
appraisement and valuation of the aver- 
age anioimt of the pi-operty thus habitual- 
ly used, and collected by distraint upon 
any portion that might at any time be 
found. Of course, the lawfulness of a tax 
upon vehicles of transportation used by 
common carriers might have to be consid- 
ered in particular instances with reference 
to Its operation as a regulation of com- 
merce among the states, but the mere fact 
that they were employed as vehicles of 
transportation in the interchange of in- 
terstate commerce w(juld not render their 
taxation invalid." 127 U. S. 123, 124, 8 
Sjip. Ct. Rep. 1039, 1040. For these rea- 
sons, and upon these authorities, the 
court is of opinion that the tax in ques- 
tion is constitutional and valid. The re- 
sult of holding otherwise would be that, 
if all the states should concur in abandon- 
ing the legal fiction that personal proper- 
ty has its situs at the owner's domicile, 
and in adopting the s.vstem of taxing it at 
the place at which it is used and by whose 
laws it is protected, i)roperty employed in 
any business requiring continuous and 
constant movement from one state to an- 
other would escape taxation altogether. 
Judgment affirmed. 

BuowN, J., not having been a member 
of the court when this case was argued, 
took no part in its decision. 

Mr. Justice Bk.adt.kv. J*Ir. Justice Field, 
and Mr. Justice H.xri.an dissenting. 



REGULATION OY COMMERCE. 



7& 



ROBBINS V. TAXING DISTRICT OF 
SHELBY CO., TENNESSBE.i 

(7 Sup. Ct. 592, 120 U. S. 489.) 

Supreme Court of the United States. March 7, 

1887. 

In eiTor to the supreme court of the state 
of Tennessee. 

Luke E. Wright (P. T. Edmondson ayrs 
with him on the brief), for plaintiff in error. 
S. P. Wallier, for defendant in error. 

BRADLEY, J. This case originated in 
the following manner: Sabine Bobbins, the 
plaintiff in error, in February, 1884, was en- 
gaged at the city of Memphis, in the state of 
Tennessee, in soliciting the sale of goods for 
the firm of Rose, Robbing & Co., of Cincin- 
nati, in the state of Ohio, dealers in paper 
and other articles of stationery, and exhibit- 
ed samples for the puiTpose of effecting such 
sales, — an employment usually denominated 
as that of a "drummer." There was in 
force at that time a statute of Tennessee, re- 
lating to the subject of taxation in the tax- 
ing districts of the state, applicable, however, 
only to the taxing districts of Shelby county, 
(formerly the city of Memphis,) by which it 
was enacted, amongst other things, that "all 
drummers, and all persons not having a reg- 
ular licensed house of business in the tax- 
ing district, offering for sale or selling goods, 
wares, or merchandise therein, by sample, 
shall, be required to pay to the county trus- 
tee the sum of ten dollars ($10) per week, or 
twenty-five dollars per month, for such priv- 
ilege; and no license shall be issued for a 
longer period than three months." Act 1881, 
c. 96, § 16. The business of selling by sam- 
ple, and nearly 60 other occupations, had 
been by law declared to be privileges, and 
were taxed as such; and it was made a mis- 
demeanor, punishable by a fine of not less 
than five, nor more than fifty, dollars, to ex- 
ercise any of such occupations without hav- 
ing first paid the tax, or obtained a license 
required therefor. Under this law, Robbins, 
who had not paid the tax nor taken a li- 
cense, was prosecuted, convicted, and sen- 
tenced to pay a fine of $10, together with the 
state and county tax, and costs; and, on ap- 
peal to the supreme court of the state, the 
judgment was affiiTued. This writ of error 
is brought to review the judgment of the su- 
preme court, on the ground that the law im- 
posing the tax was repugnant to that clause 
of the constitution of the United States 
which declares that congress shall have pow- 
er to regulate commerce among the several 
states. 

On the trial of the cause in the inferior 
court, a jury being waived, the following 
agreed statement of facts was submitted to 
the court, to wit: "Sabine Robbins is a citi- 
zen and resident of Cincinnati, Ohio, and on 



the 



day of 



-, 1884, was engaged in 



1 Dissenting opinion of Mr. Chief Justice 
Waite is omitted. 



the biTsiness of drumming in the taxing dis- 
trict of Shelby county, Tennessee, — i. e., so- 
liciting trade, by the use of samples, for the 
liouse or firm for which he worked as drum- 
mer; said firm being the firm of 'Rose, Rob- 
bins & Co.,' doing business in Cincinnati, and 
all the members of said firm being citizens 
and residents of Cincinnati. Ohio. While en- 
gaged in the act of drumming for said firm, 
and for the claimed offense of not having 
taken out the required license for doing said 
business, the defendant, Sabine Robbins, was 
arrested by one of the Memphis or taxing 
district police force and carried before the 
Hon. D. P. Hadden, president of the taxing 
district, and fined for the offense of drum- 
ming without a license. It is admitted the 
firm of 'Rose, Robbins & Co.' are engaged in 
tlie selling of paper, writing materials, and 
such articles as are used in the book-stores 
of the taxing district of Shelby county, and 
that it was a line of such articles for the 
sale of which the said defendant herein was 
drumming at the time of his arrest." This 
was all the evidence, and thereupon the court 
rendered judgment against the defendant, to 
which he excepted, and a bill of exceptions 
was taken. 

The principal question argued before the 
supreme court of Tennessee was as to the 
constitutionality of the act which imposed 
the tax on drummers; and the court decided 
that it was constitutional and valid. That 
is the question before us, and it is one of 
great importance to the people of the United 
States, both as I'espects their business inter- 
ests and their constitutional rights. It is 
presented in a nutshell, and does not, at this 
day, require for its solution any great elabo- 
ration of argument or review of authorities. 
Certain principles have been already estab- 
lished by the decisions of this court, which 
will conduct us to a satisfactory decision. 
Among those principles are the following: 

1. The constitution of the United States 
having given to congress the power to regu- 
late commerce, not only with foreign nations, 
but among the several states, that power is 
necessarily exclusive whenever the subjects 
of it are national in their character, or admit 
only of one uniform system, or plan of regu- 
lation. This was decided in the case of Coo- 
ley V. Board of Wardens of the Port of Phila- 
delphia, 12 How. 299, 319, and was virtually 
involved in the case of Gibbons v. Ogden, 9 
Wheat. 1, and has been confirmed in many 
subsequent cases; amongst others, in Brown 
V. Maryland, 12 Wheat. 419; Passenger Cas- 
es, 7 How. 283; Crandall v. Nevada, 6 Wall. 
35, 42; Ward v. Maryland, 12 Wall. 418, 430; 
State Freight Tax Cases, 15 Wall. 232, 279; 
Henderson v. Mayor of New York, 92 U. S. 
259, 272; Railroad Co. v. Husen, 95 U. S. 
465, 469; Mobile v. Kimball, 102 U. S. 691, 
697; Gloucester Ferrj^ Co. v. Pennsylvania, 
114 U. S. 196, 203, 5 Sup. Ct. 826; Wabash 
R. Co. V. Illinois, 118 U. S. 557, 7 Sup. Ct. 4, 



76 



THE POWERS OF CONGRESS. 



2. Another established doctrine of this 
court is that, wliere the power of congress to 
regulate is exclusive, the failure of congress 
to make express regulations indicates its will 
that the subject shall be left free from any 
restrictions or impositions; and any regula- 
tion of the subject by the states, except in 
matters of local concern only, as hereafter 
mentioned, is repugnant to such freedom. 
This was held by Mr. Justice Johnson in 
Gibbons v. Ogden, 9 Wheat. 1, 222; by Mr. 
Justice (xrier in the Passenger Cases, 7 How. 
283, 4G2; and has been affirmed in subse- 
quent cases. State Freight Tax Cases, 15 
Wall. 232. 279; Railroad Co. v. Husen, 95 U. 
S. 4G5, 4G9; Welton v. Missouri, 91 U. S. 
275. 282; County of Mobile v. Kimball, 102 
U. S. 091, G97; Brown v. Houston, 114 U. S. 
622, G31, 5 Sup. Ct. 1091; Walling v. Michi- 
gan, 116 U. S. 446, 455, 6 Sup. Ct. 4.54; Pick- 
ard V. Pullman Palace Car Co.. 117 U. S. 34, 
6 Sup. Ct. 635; Wabash R. Co. v. Illinois, 
118 U. S. 557, 7 Sup. Ct. 4. 

3. It is also an established principle, as al- 
ready indicated, that the only way in which 
oommerce between the states can be legiti- 
mately affected by state laws is when, by 
virtue of its police power, and its jurisdic- 
tion over persons and property within its 
limits, a state pi'ovides for the security of the 
lives, limbs, health, and comfort of persons 
and the protection of property, or when it 
does those things which may otherwise inci- 
dentally affect commerce; such as the estab- 
lishment and regulation of highways, canals, 
railroads, wharves, ferries, and other com- 
mercial facilities; the passage of inspection 
laws to secure the due quality and measure of 
products and commo<lities; the passage of 
laws to regulate or restrict the sale of arti- 
cles deemed injurious to the health or morals 
of the community; the imposition of taxes 
upon persons residing within the state or be- 
longing to its population, and upon avoca- 
tions and employments pursiied therein, not 
directly connected with foreign or interstate 
commerce, or Avith some other employment 
or business exercised under authority of the 
constitution and laws of the United States, 
and the imposition of taxes upon all property 
within the state, mingled with and forming 
part of the great mass of property therein. 
But, in making siich internal regulations, a 
state cannot impose taxes upon persons pass- 
ing through the state, or coming into it mere- 
ly for a temporary purpose, especially if con- 
nected with interstate or foreign commerce; 
nor can it impose such taxes upon property 
imported into the state from abroad, or from 
another state, and not yet become part of the 
common mass of property therein; and no dis- 
crimination can be made by any such regula- 
tions adversely to the persons or property of 
other states; and no regulations can be made 
directly affecting interstate commerce. Any 
taxation or regulation of the latter character 
would be an unaiithorized intei'ference with 
the power given to congress over the sub- 



ject. For authorities on this last head it is 
only necessary to refer to those already cit- 
ed. In a word, it may be said that, in the 
matter of interstate commerce, the United 
States ai"e but one country, and are and nuist 
be subject to one system of regulations, and 
not to a multitude of systems. The doctrine 
of the freedom of that commerce, except as 
regulated by congress, is so firmly estab- 
lished that it is unnecessary to enlarge fur- 
ther upon the subject. 

In view of these fundamental principles, 
which are to govern our decision, we may ap- 
proach the question submitted to us in the 
present case, and inquire whether it is com- 
petent for a state to levy a tax or impose any 
other restriction upon the citizens or inhab- 
itants of other states for selling or seeking 
to sell their goods in such state before they 
are introduced therein. Do not such restric- 
tions affect the very foundation of interstate 
trade? How is a manufacturer or a mer- 
chant of one state to sell his goods in another 
state, without, in some way, obtaining or- 
ders therefor? Must he be compelled to send 
them at a venture, without knowing whether 
there is any demand for them? This may, 
undoubtedly, be safely done with regard to 
some products for which there is always a 
market and a demand, or where the course 
of trade has established a general and unlim- 
ited demand. A raiser of farm produce in 
New Jersey or Connecticut, or a manufac- 
turer of leather or wooden-ware, may, per- 
haps, safely take his goods to the city of 
New York, and be sure of finding a stable 
and reliable market for them. But there are 
hundreds, perhaps thousands, of articles 
which no person would think of exporting to 
another state without first procuring an or- 
der for them. It is true, a merchant or man- 
ufacturer in one state may erect or hire a 
warehouse or store in another state, in which 
to place his goods, and await the chances of 
being able to sell them; but this would re- 
quire a warehouse or store in every state 
with which he might desire to trade. Sure- 
ly, he cannot be compelled to take this in- 
convenient and expensive course. In cer- 
tain branches of business, it may be adopted 
with advantage. Many manufacturers do 
open houses or places of business in other 
states than those in which they reside, and 
send their goods there to be kept on sale; but 
this is a matter of convenience, and not of 
compulsion, and would neither suit the con- 
venience nor be within the ability of many 
others engaged in the same kinds of busi- 
ness, and would be entirely unsuited to many 
branches of business. In these cases, then, 
what shall the merchant or manufacturer do, 
who wishes to sell his goods in other states? 
Must he sit still in his factory or warehouse, 
and wait for the people of those states to 
come to him? This would be a silly and 
ruinous proceeding. The only other way, 
and the one, perhaps, which most extensive- 
ly prevails, is to obtain orders from persons 



kegtjlation of commerce. 



77 



residing or doing business in those otlier 
states. But liow is tlie merchant or manu- 
facturer to secure such orders? If he may 
be taxed bj' such states for doing so, who 
shall limit the tax? It may amount to pro- 
hibition. To say that such a tax is not a 
burden upon interstate commerce, is to speak 
at least unadvisedly, and without due atten- 
tion to the truth of things. It may be sug- 
gested that the merchant or manufacturer 
has the post-office at his command, and may 
solicit orders through the mails. We do not 
suppose, however, that any one would seri- 
ously contend that this is the only way in 
which his business can be transacted with- 
out being amenable to exactions on the part 
of the state. Besides, why could not the 
state to which his letters might be sent, tax 
him for soliciting orders in this way, as well 
as in any other way? The truth is, that in 
numberless instances, the most feasible, if 
not the only practicable, way for the mer- 
chant or manufacturer to obtain orders in 
other states is to obtain them by personal ap- 
plication, either by himself or by some one 
employed by him for that purpose; and in 
many branches of business he must neces- 
sarily exhibit samples for the purpose of de- 
termining the kind and quality of the goods 
he proposes to sell, or which the other party 
desires to purchase. But the right of taxa- 
tion, if it exists at all, is not confined to sell- 
ing by sample. It embraces every act of 
sale, whether by word of mouth only, or by 
the exhibition of samples. If the right ex- 
ists, any New York or Chicago merchant, vis- 
iting New Orleans or Jacksonville for pleas- 
ure or for his health, and casually taking an 
order for goods to be sent from his ware- 
house, could be made liable to pay a tax for 
so doing, or be convicted of a misdemeanor 
for not having taken out a license. The 
right to tax would apply equally as well to 
the principal as to his agent, and to a single 
act of sale as to a hundred acts. 

But it will be said that a denial of this 
power of taxation will interfere with the 
right of the state to tax business pursuits 
and callings carried on within its limits, and 
its right to require licenses for carrying on 
those which are declared to be privileges. 
This may be true to a certain extent, but 
only in those cases in which the states them- 
selves, as well as individual citizens, are sub- 
ject to the restraints of the higher law of the 
constitution; and this interference Avill be 
very limited in its operation. It will only 
prevent the levy of a tax, or the require- 
ments of a license- for making negotiations 
in the conduct of interstate commerce; and 
it may well be asked where the state gets 
authority for imposing burdens on that 
branch of business any more than for impos- 
ing a tax on the business of importing from 
foreign countries, or even on that of post- 
master or United States marshal. The mere 
calling the business of a drummer a privi- 
lege, cannot make it so. Can the state legis- 



lature make it a Tennessee privilege to carry 
on the business of importing goods from for- 
eign countries? If not, has it any better 
right to make it a state privilege to carry on 
interstate commerce? It seems to be forgot- 
ten in argument that the people of this coun- 
try are citizens of the United States, as well 
as of the individual states, and that they 
have some rigncs under the constitution and 
laws of the former, independent of the latter, 
and free from any interference or restraint 
from them. To deny to the state the power 
to lay the tax or require the license in ques- 
tion, will not, in any perceptible degree, di- 
minish its resources, or its just power of 
taxation. It is very true that, if the goods 
when sold were in the state, and part of its 
general mass of property, they would be lia- 
ble to taxation; but when brought into the 
state in consequence of the sale, they will be 
equally liable; so that, in the end, the state 
will derive just as much revenue from them 
as if they were there before the sale. As 
soon as the goods are in the state, and be- 
come part of its general mass of property, 
they will become liable to be taxed in the 
same manner as other property of similar 
character, as was distinctly held by this 
court in the case of Brown v. Houston, 114 
U. S. 622, 5 Sup. Ct. 1091. When goods are 
sent from one state to another for sale, or in 
consequence of a sale, they become part of 
its general property, and amenable to its 
laws: provided that no discrimination be 
made against them as goods from another 
state, and that they be not taxed by reason of 
being brought from another state, but only 
taxed in the usual way, as other goods are. 
Brown v. Houston, qua supra; Machine Co. 
V. Gage, 100 U. S. 676. But to tax the sale 
of such goods, or the offer to sell them, be- 
fore they are brought into the state, is a very 
different thing, and seems to us clearly a tax 
on interstate commerce itself. 

It is strongly urged, as if it were a material 
point in the case, that no discrimination is 
made between domestic and foreign drum- 
mers,— those of Tennessee and those of other 
states; that all are taxed alike. But that 
does not meet the difficulty. Interstate com- 
merce cannot be taxed at all, even though 
the same amount of tax should be laid on do- 
mestic commerce, or that which is carried on 
solely within the state. This was decided 
in the State Freight Tax Cases, 15 Wall. 
232. The negotiation of sales of goods which 
are in another state, for the purpose of intro- 
ducing them into the state in which the nego- 
tiation is made, is interstate commerce. A 
New Orleans merchant cannot be taxed there 
for ordering goods from London or New 
York, because, in the one case, it is an act of 
foreign, and, in the other, of interstate, com- 
merce, both of which are subject to regula- 
tion by congress alone. It Avould not be diffi- 
cult, however, to show that the tax authorized 
by the state of Tennessee in the present case 
is discriminative against the merchants and 



.78 



THE POWERS OF COXGllESS. 



manufacturers of other states. They can 
only sell their yoods in Memphis by the em- 
ployment of drummers and by means of sam- 
ples; whilst the merchants and manufactur- 
ers of Memphis, having regular licensed 
hoiises of business there, have no occasion 
for such agents, and, if they had, they are 
not subject to any tax therefor. They are 
taxed for their licensed houses, it is true; but 
so, it is presumable, are the merchants and 
manufacturers of other states in the places 
where they reside; and the tax on drummers 
operates greatly to their disadvantage in 
compai'ison Avith the merchants and manu- 
facturers of Memphis. And such was un- 
doubtedly one of its objects. This kind of 
taxation is usually imposed at the instance 
and solicitation of domestic dealers as a 
means of protecting them from foreign com- 
petition; and in many cases there may be 
some i-eason in their desire for such protec- 
tion. But this shows in a still stronger light 
the unconstitutionality of the tax. It shows 
that it not only operates as a restriction upon 
interstate commerce, but that it is intended 
to have that effect as one of its principal ob- 
jects. And if a state can, in this way, im- 
pose restrictions upon interstate commerce 
for the benetlt and protection of its own citi- 
zens, we are brought back to the condition of 
things which existed before the adoption of 
the constitution, and Avhieh was one of the 
principal causes that led to it. If the selling 
of goods by sample, and the employment of 



drummers for that purpose, injuriously af- 
fect the local interest of the states, congress, 
if applied to, will undoubtedly make such 
reasonable regulations as the case may de- 
mand. And congress alone can do it; for it 
is obvious that such regulations should be 
based on a uniform system applicable to the 
whole country, and not left to the varied, dis- 
cordant, or retaliatory enactments of 4(J dif- 
ferent states. The confusion into w^hich the 
commerce of the country would be thrown by 
being subject to state legislation on this siib- 
ject would be but a repetition of the disorder 
which prevailed under the articles of confed- 
eration. 

To say that the tax, if invalid as against 
drunmiers from other states, operates as a 
discrinunation against the drummers of Ten- 
nessee, agauist whom it is conceded to be 
valid, is no argument, because the state is 
not bound to tax its own drummers; and if 
it does so, whilst having no power to tax 
those of other states, it acts of its own free 
will, and is itself the author of such discrim- 
ination.?. As before said, the state may tax 
its own internal commerce; but that does not 
give it any right to tax interstate commerce. 

The judgment of the supreme court of Ten- 
nessee is reversed, and the plaintiff in error 
must be discharged. 

Mr. Chief Justice WAiTE, Mr. Justice 
FIELD, and Mr. Justice GRAY, dissent. 



THE POLICE POWER. 



79 



rONG YUE TING v. UNITED STATES 

et al. WONG QUAN y. SAME. LEE 

.lOE V. SAME.i 

(13 Sup. Ct. 1016, 149 U. S. 698.) 

Supreme Court of the United States. May 15, 
1S93. 

(Nos. 1,345, 1,346, 1,347.) 

Appeals from the circuit court of the Unit- 
ed States in and for the southern district of 
New York. Affirmed. 
Statement by Mr. Justice GRAY: 
Tliese were three writs of habeas corpus, 
granted by the circuit court of the United 
States for the southern d'isti-ict of New Yorlv. 
upon petitions of Chinese Uiborers arrested 
and hekl by the marshal of the district for 
not having certificates of residence, under 
section 6 of the act of May 5, 1892, c. 60, 
which is copied in the margin. 2 



1 Dissenting opinions of Mr. Chief Justice 
Fuller, Mr. Justice Brewer, and Mr. Justice 
Field omitted. 

2An act to prohibit the coming of Chinese per- 
sons into the United States. 

Be it enacted by the senate and house of rep- 
resentatives of the United States of America 
in congress assembled, that all laws now in force 
prohibiting and regulating the coming into this 
country of Chinese persons and persons of 
Chinese descent are hereby continued in force 
for a period of ten years from the passage of 
this act. 

Sec. 2. That any Chinese person or person of 
Chinese descent, when convicted and adjudged 
under any of said laws to be not lawfully enti- 
tled to be or remain in the United States, shall 
be removed fi'om the United States to China, 
unless he or they shall make it appear to the 
justice, judge, or commissioner before whom he 
or they are tried that he or they are subjects 
or citizens of some other country, in which case 
he or they shall be removed from the United 
States to such country: provided, that in any 
case where such other country, of which such 
Chinese person shall claim to be a citizen or 
subject, shall demand any tax as a condition 
of the removal of such person to that country, 
he or she shall be removed to China. 

Sec. 3. That any Chinese person or person 
of Chinese descent arrested under the provi- 
sions of this act or the acts hereby extended 
shall be adjudged to be unlawfully within the 
United States, unless such person shall estab- 
lish, by atfirmative proof, to the satisfaction 
of such justice, judge, or commissioner, his law- 
ful right to remain in the United States. 

Sec. 4. That any such Chinese person or per- 
son of Chinese descent convicted and adjudged 
to be not lawfully entitled to be or remain in 
the United States shall be imprisoned at hard 
labor for a period of not exceeding one year, 
and thereafter removed from the United States, 
as hereinbefore provided. 

Sec. 5. That after the passage of this act, 
on an application to any judge or court of the 
United States in the first instance for a writ 
of habeas corpus, by a Chinese person seeking 
to land in the United States, to whom that 
privilege has been denied, no bail shall be al- 
lowed, and such application shall be heard and 
determined promptlv, without unnecessary de- 
lay. 

Sec. 6. And it shall be the duty of all Chinese 
laborers within the limits of the United States 



The rules and regulations made and pro- 
mulgated by the secretary of the treasury 
under section 7 of that act prescribe forms 
for applications for certificates of residence, 
for afhdavits in support thereof, and for 
the certificates themselves; contain the pro- 

at the time of the passage of this act, and who 
are entitled to remain in the United States, to ap- 
ply to the collector of internal revenue of their 
respective districts, within one year after the 
passage of this act, for a certificate of residence; 
and any Chinese laborer within the limits of 
the United States, who shall neglect, fail, or 
refuse to comply with the provisions of this 
act, or who. after one year from the passage 
hereof, shall be found within the jurisdiction 
of the United States without such certificate of 
residence, shall be deemed and adjudged to be 
unlawfully within the United States, and may 
be arrested by any United States customs ofti- 
cial, collector of internal revenue or his depu- 
ties. United States marshal or his deputies, and 
taken before a United States judge, whose 
duty it shall be to order that he be deported 
from the United States, as hereinbefore provid- 
ed, unless he shall establish clearly, to the sat- 
isfaction of said judge, that by reason of acci- 
dent, sickness, or other unavoidable cause he 
has been unable to procure his certificate, and 
to the satisfaction of the court, and by at least 
one credible white witness, that he was a resi- 
dent of the United States at the time of the pas- 
sage of this act; and if upon the hearing it 
shall appear that he is so entitled to a certifi- 
cate, it shall be granted, upon his paying the 
cost. Should it appear that said Chinaman had 
procured a certificate which has been lost or 
destroyed, he shall be detained, and judgment 
suspended a reasonable time to enable him to 
procure a duplicate from the ofiicer granting 
it; and in such cases the cost of said arrest 
and trial shall be in the discretion of the court. 
And any Chinese person other than a Chinese 
laborer, having a right to be and remain in the 
United States, desiring such certificate as evi- 
dence of such right, may apply for and receive 
the same without charge. 

Sec. 7. That immediately after the passage 
of this act the secretary of the treasury shall 
make such rules and regulations as may be 
necessary for the efficient execution of this act, 
and shall prescribe the necessary forms and 
furnish the necessary blanks to enable collect- 
ors of internal revenue to issue the certificates 
required hereby, and make such provisions that 
certificates may be procured in localities con- 
venient to the applicants. Such certificates 
shall be issxied without charge to the applicant, 
and shall contain the name, age. local residence, 
and occupation of the applicant, and such oth- 
er description of the applicant as shall be pre- 
scribed by the secretary of the treasury; and 
a duplicate thereof shall be filed in the office 
of the collector of internal revenue for the dis- 
trict within which such Chinaman makes appli- 
cation. 

Sec. 8. That any person who shall knowingly 
and falsely alter or substitute any name for the 
name written in such certificate, or forge such 
certificate, or knowingly utter any forged or 
fraudulent certificate, or falsely personate 
any person named in such certificate, shall be 
guilty of a misdemeanor, and upon conviction 
thereof shall be fined in a sum not exceeding 
one thousand dollars, or imprisoned in the peni- 
tentiary for a term of not more than five years. 

Sec. 9. The secretary of the treasury may 
authorize the payment of such compensation 
in the nature of fees to the collectors of inter- 
nal revenue, for services performed under the 
provisions of this act, in' addition to salaries 
now allowed by law, as he shall deem necessa- 
ry, not exceeding the sum of one dollar 
for each certificate issued. 



80 



THE POLICE POWER. 



visions copied in the margin; s and also pro- 
vide for recording duplicates of tlie certifi- 
cates in the office of the collector of internal 
revenue. 

The first petition alleged that the peti- 
tioner was a person of the Chinese race, 
horn in China, and not a naturalized citizen 
of tlie United States; that in or before 187!) 
ho came to the United States, with the in- 
tention of remaining and talcing up his res- 
idence therein, and with no definite intention 
of returning to Cliina, and had ever since 
been a permanent resident of the United 
States, and for more than a year last past 
had I'esided in the city, county, and state of 
New York, and within the second district 
fur the collection of internal revenue in 
that state; that he had not, since the passage 
of the act of 18!)2, applied to the collector 
of internal revenue of that district for a 
certificate of residence, as required by sec- 
tion 6, and was, and always had been, with- 
out such certificate of residence; and that he 
was arrested by the marshal, claiming au- 
thority to do so under that section, without 
any writ or warrant. The return of tlie mar- 
shal stated that the petitioner was found by 
him within the jurisdiction of the United 
States and in the southern district of New 
York, without the certificate of residence 
required by that section; that he had, there- 
fore, arrested him, with the purpose and in- 



3 Collectors of internal revenue will receive 

appUcatioiis on the t'uUowing form, at their 
own oltices, from .such Cliiiiese as are conven- 
iently located thereto, and will cause their dep- 
uties to proceed to the towns or cities in their 
respective divisions where any considerable 
number of Chinese are residing, "for the purpose 
of receiving applications. No application will 
be received later than May 5, 1808. 

Collectors and deputies will give such notice, 
through leading Chinese, or by notices posted 
in the Chinese quarter of the various localities, 
as will be sufficient to apprise all Chuiese resid- 
ing in their districts of their readiness to re- 
ceive applications, and the time and place 
where they may be made. All applications re- 
ceived by deputies must be forwarded to the 
collector's office, from whose office all certifi- 
cates of residence will be issued, and sent to the 
deputy for delivery. 

The affidavit of at least one credible witness 
of good character to the fact of residence and 
lawful status within the United States must be 
furni.shed with every application. If the appli- 
cant is unable to furnish such witness satis- 
factory to the collector or his deputy, his appli- 
cation will be rejected, unless he shall furnish 
other proof of his risht to remain in the ITniled 
States, in which case the application, with the 
proof.s presented, shall be forwarded to the 
commis.sioner of internal revenue for his deci- 
sion. The witness must appear before the col- 
lector or his deputy, and be fully questioned 
in regard to his testimony before being sworn. 

In all cases of loss or destruction of original 
certificates of residence, where it can be estab- 
lished to the satisfaction of the collector of 
the district in which the certificate was issued 
that such loss or destruction was accidental, 
and without fault or neelisrence on the vnrt 
of the applicant, a duplicate of the original 
may be issued under the same conditions that 
governed the orij;inal issue. 



teution of taking him before a United States^ 
judge within that district; and that the peti- 
tioner admitted to the marshal, in reply to 
questions put through an intei*preter, that 
he was a Chinese laborer, and was without 
the required certificate of residence. 

The second petition contained similar alle- 
gations, and further alleged that the peti- 
tioner was taken by the marshal before the 
district judge for the southern district of 
New York, and that "the said United States 
judge, without any hearing of any kind, 
thereupon ordered that your petitioner be re- 
manded to the custody of the marshal in and 
for the southern district of New York, and 
deported forthwith from the United States, 
as is provided in said act of May 5, 1892, 
all of which more fully appears by said 
order, a copy of which is hereto annexed 
and made a part hereof," and which is copied 
in the margin ; * and that he was detained 
by virtue of the marshal's claim of authori- 
ty and the jiidge's order. The marshal re- 
turned that he held the petitioner under 
that order. 

In the third case the petition alleged, and 
the judge's order showed, the following state 
of facts: On April 11, 1893, the petitioner 
applied to the collector of internal revenue 
for a certificate of residence. The collector 
refused to give him a certificate, on the 
ground that the witnesses whom he produced 
to prove that he was entitled to the certifi- 
cate were persons of the Chinese race, and 
not credible witnesses, and required of him 
to produce a witness other than a China- 
man to prove that he was entitled to the cer- 
tificate, which he was unable to do, because 

■t In the matter of the arrest and deportation 
of Wong Quan, a Chinese laborer. 

Wong Quan, a Chinese laborer, having been 
arrested in the city of New Y'ork on the 6th 
day of May, 1893, and brought before me. a 
United States judge, by John W. Jacobus, the 
marshal of the United States in and for the 
southern district of New Y'ork, as being a 
Chinese laborer found within the jurisdiction 
of the united States after the expiration of one 
year from the passage of the act of congress 
approved on the 5th day of May, 1892. and en- 
titled "An act to prohibit the coming of Chinese 
persons _ into the United States," without having 
the certificate of residence required by said act; 
and the said Wong Quan having failed to clear- 
ly establish to my satisfaction that by reason 
of accident, sickness, or other unavoidable cause 
he had been unable to procure the said certifi- 
cate, or that he had procured such certificate, 
and that the same had been lost or destroyed: 
Now. on motion of Edward Mitchell, the United 
States attorney in and for the southern district 
of New York, it is ordered that the said Wong 
Quan be. and he hereby is, remanded to the 
custody of the said John W. Jacobus, the T'^nit- 
ed States marshal in and for the southern 
district of New Y''ork: and it is further ordered, 
that the said Wong Quan be deported from the 
United States of America in accordance with 
the provisions of said act of congress approved 
on the 5th day of May. 1892. 

Dated New York, May 6, 1893. 

Addison Brown. 

United States District Judge for the South- 
ern District of New York. 



POLICE POWER VESTED IN CONGRESS. 



81 



there was no person other than one of the 
Chinese race who knew and could truthful- 
ly swear that he was lawfully within the 
United States on May 5, 1892, and then en- 
titled to remain therein; and because of 
such unavoidable cause he was unable to 
produce a certificate of residence, and was 
now without one. The petitioner was arrest- 
ed by the marshal, and taken before the 
judge, and clearly established to the satis- 
faction of the judge that he was unable to 
procure a certificate of residence by reason 
of the unavoidable cause aforesaid; and 
also established to the judge's satisfaction, 
by the testimony of a Chinese resident of New 
York, that the petitioner was a resident 
of the United States at the time of the pas- 
sage of the act; but, having failed to estab- 
lish this fact clearly to the satisfaction of 
the court by at least one credible white wit- 
ness, as required by the statute, the judge 
ordered the petitioner to be remanded to 
the custody of the marshal, and to be de- 
ported from the United States, as provided 
in the act. 

Each petition alleged that the petitioner 
was arrested and detained without due pro- 
cess of law, and that section 6 of the act 
of May 5, 1892, was unconstitutional and 
void. 

In each case the circuit court, after a hear- 
ing upon the writ of habeas corpus and the 
return of the marshal, dismissed the writ of 
habeas corpus, and allowed an appeal of the 
petitioner to this court, and admitted him 
to bail pending the appeal. All the proceed- 
ings, from the arrest to the appeal, took 
place on May 6th. 

Jos. H. Choate, J. Hubley Ashton, and 
Maxwell Evarts, for appellants. Sol. Gen. 
Aldrich, for appellees. 

Mr. Justice GRAY, after stating the facts, 
delivered the opinion of the court. 

The general principles of public law which 
lie at the foundation of these cases are clear- 
ly established by previous judgments of this 
court, and by the authorities therein referred 
to. 

In the recent case of Nishimura Ekiu v. 
U. S., 142 U. S. 651, 659, 12 Sup. Ct. Rep. 
336, the court, in sustaining the action of 
the executive department, putting in force 
an act of congress for the exclusion of 
ah ens, said: "It is an accepted maxim of 
international law that every sovereign nation 
has the power, as inherent in sovereignty, 
and essential to self-preservation, to forbid 
the entrance of foreigners within its domin- 
ions, or to admit . them only in such cases 
and upon such conditions as it may see fit 
to prescribe. In the United States this 
power is vested in the national government, 
to wliich the constitution has committed the 
entire control of international relations, in 
peace as well as in war. It belongs to the 
political department of the government, and 
may be exercised either through treaties 

SMITH, CONST. LAW — 6 



made by the president and senate or through 
statutes enacted by congress." 

The same views were more fully expound- 
ed in the earlier case of Chae Chan Ping v. 
U. S., 130 U. S. 581, 9 Sup. Ct. Rep. 623, 
in which the validity of a former act of con- 
gress, excluding Chinese laborers from the 
United States, under the cii'cumstances there^ 
in stated, was affirmed. 

In the elaborate opinion delivered by Mr, 
Justice Field in behalf of the court it was 
said: "Those laborers are not citizens of the 
United States; they are aliens. That the 
government of the United States, through 
the action of the legislative department, can 
exclude aliens from its territory, is a propo- 
sition which we do not think open to con- 
troversy. Jurisdiction over its own territory 
to that extent is an incident of every in- 
dependent nation. It is a part of its in- 
dependence. If it could not exclude aliens, 
it would be to that extent subject to the 
control of another power." "The United 
States, in their relation to foreign coimtries 
and their subjects or citizens, are one na- 
tion, invested with powers which belong to 
independent nations, the exercise of which 
can be invoked for the maintenance of its 
absolute independence and security through- 
out its entire territory." 130 U. S. 603, 604, 
9 Sup. Ct. Rep. 629. 

It was also said, repeating the language 
of Mr. Justice Bradley in Knox v. Lee, 12 
Wall. 457, 555: "The United States is not 
only a government, but it is a national 
government, and the only government in this 
counti'y that has the character of nationality. 
It is invested with power over all the foreign 
relations of the country, war, peace, and 
negotiations and intercoui'se with other na- 
tions; all of which are forbidden to the 
state governments." 130 U. S. 605, 9 Sup. 
Ct. Rep. 629. And it was added: "For local 
interests, the several states of the Union 
exist; but for intei'national purposes, em- 
bracing our relations with foreign nations, 
we are but one people, one nation, one 
power." 130 U. S. 606, 9 Sup. Ct. Rep. 630. 

The court then went on to say: "To pre- 
serve its independence, and give security 
against foreign aggression and encroaghment, 
is the highest duty of every nation; and to 
attain these ends nearly all other considera- 
tions are to be subordinated. It matters not 
in what form such aggression and encroach- 
ment come, whether from the foreign nation 
acting in its national character, or from 
vast hordes of its people crowding in upon 
us. The government, possessing the powers 
which are to be exercised for protection and 
security, is clothed with authority to de- 
termine the occasion on which the powers 
shall be caUed forth; and its determination, 
so far as the subjects affected are concerned, 
is necessarily conclusive upon all its depart- 
ments and officers. If, therefore, the govern- 
ment of the United States, through its legis- 
lative department, considers the prc-sence of 



82 



THE POLICE POWER. 



foreif;ners of a different race in this country, 
•who will not assimilate with us, to be dan- 
gerous to its peace and security, their ex- 
clusion is not to be stayed because at the 
time there are no actual hostilities with the 
nation of which the foreigners are subjects. 
The existence of war would render the ne- 
cessity of the proceeding only more obvious 
and pressing. The same necessity, in a less 
pressing degree, may arise when war does 
not exist, and the same authority which ad- 
judges the necessity in one case must also 
determine it in the other. In both cases its 
determination is conclusive upon the judicia- 
ry. If the government of the country of 
which the foreigners excluded are subjects 
is dissatisfied with this action, it can make 
complaint to the executive head of our gov- 
ernment, or resort to any other measure 
which, in its judgment, its interests or dig- 
nity may demand; and there lies its only 
remedy. The power of the government to 
exclude foreigners from the country, when- 
ever, in its judgment, the public interests re- 
quire such exclusion, has been asserted in 
repeated instances, and never denied by the 
executive or legislative departments." i;W 
U. S. GOG. GOT, Sup. Ct.Rep.G31. This state- 
ment was supported by many citations from 
the diplomatic correspondence of successive 
secretaries of state, collected in Wliart. Int. 
Law Dig. § 20G. 

The right of a nation to expel or deport 
foreigners wdio have not been naturalized, 
or taken any steps towards becoming citizens 
of the country, rests upon the same groimds, 
and is as absolute and unqualified, as the 
right to prohibit and prevent their entrance 
into the country. 

This is clearly affirmed in dispatches re- 
ferred to by the court in Chae Chan Ping's 
Case. In 18.jG, Mr. Marcy wrote: "Every 
society possesses the undoubted right to de- 
termine who shall compose its members, and 
it is exercised by all nations, both in peace 
and war. A memorable example of the ex- 
ercise of this power in time of peace was the 
passage of the alien law of the United States 
in the year 1708." In 18G0, Mr. Fi.sh wrote: 
'"The control of the people within its limits, 
and the right to expel from its territory per- 
sons w'ho are dangerous to the peace of the 
state, are too clearly within the essential 
attributes of sovereignty to be seriously con- 
tested." Whart. Int. Law Dig. § 2UG; 130 U. 
S. GOT, 9 Sup. Ct. Rep. G.'JO. 

The statements of leading commentators 
on the law of nations are to the same effect. 

Vattel says: "Every nation has the right 
to refuse to admit a foreigner into the coun- 
try, when he cannot enter without putting 
the nation in evident danger, or doing it a 
manifest injury. What it owes to itself, the 
care of its own safety, gives it this right; 
and, in virtue of its natural liberty, it be- 
longs to the nation to judge whether its 
circumstances will or will not justify the ad- 
mission of the foreigner." "Thus, also, it 



has a right to send them elsewhere, if it 
has just cause to fear that they will corrupt 
the manners of the citizens; that they will 
create religious disturbances, or occasion any 
other disorder, contrary to the public safety. 
In a word, it has a right, and is even obliged, 
in this respect, to follow the I'ules which 
prudence dictates." Vatt. Law Nat. lib. 1, 
c. 19, §§ 230, 231. 

Ortolan says: "The government of each 
state has always the right to compel foreign- 
ers who are found witliiu its territory to go 
away, by having them taken to the frontier. 
This right is based on the fact that, the 
foreigner not making part of the nation, his 
individual reception into the territory is 
matter of pure permission, of simple toler- 
ance, and creates no obligation. The ex- 
ercise of this right may be subjected, doubt- 
less, to certain forms by the domestic laws 
of each country; but the right exists none the 
less, imiversallj^ recognizeil and put in force. 
In France no special form is now prescribed 
in this matter; the exercise of this right of 
expulsion is wholly left to the executive pow- 
er." Ortolan, Diplomatie de la Mer, (ith 
Ed.) lib. 2, c. 14, p. 29T. 

Phillimore says: "It is a received maxim 
of international law that the government of 
a state may i)rohibit the entran e of strangers 
into the coiuitry, and may, therefore, regu- 
late the conditions under which they shall be 
allowed to remain in it, or may require and 
compel their departure from it." 1 Philhm. 
Int. Law, (3d Ed.) c. 10, § 220. 

Bar saj's: "Banishment and extradition 
must not be confounded. The former is 
simply a question of expediency and hu- 
manity, since no state is bound to receive all 
foreigners, although, perhaps, to exclude all 
w^ould be to say good-bye to the internation- 
al union of all civilized states; and although 
in some states, such as England, strangers 
can only be expelled by means of special 
acts of the legislative power, no state has 
renounced its right to expel them, as is 
shown by the alien bills wdiich the govern- 
ment of England has at times used to invest 
itself with the right of expulsion." "Banish- 
ment is regulated by rules of exp(xliency and 
humanity, and is a matter for the police of 
the state. No doubt the police can appre- 
hend any foreigner who refuses to qx;it the 
country in spite of authoritative orders to do 
so, and convey him to the frontier." Bar, 
Int. Law, (Gihespie's Ed. 1883,) T08, note, 
711. 

In the passages just quoted from Gillespie's 
translation of Bar, "banishment" is evidently 
used in the sense of expidsion or deportation 
by the political authority on the ground of 
expediency, and not in the sense of transpor- 
tation or exile by way of punishment for 
crime. Strictly speaking, "transportation," 
"extradition," and "deportation," although 
each has the effect of removing a person 
from the country, are different things, and 
have different purposes. "Transportation" 



POLICE POWER VESTED IN CONGRESS. 



83 



IS by way of punisliment of one convicted of 
an offense against the laws of tlie country. 
"Extradition" is the surrender to another 
country of one accused of an offense against 
its laws, there to be tried, and, if found guil- 
ty, punished. "Deportation" is the removal 
of an alien out of the country simply because 
his presence is deemed inconsistent with the 
public welfare, and without any punishment 
being imposed or contemplated, either luider 
the laws of the country out of which he is 
sent or under those of the country to which 
he is taken. 

In England, the only question that has 
ever been made in regard to the power to ex- 
pel aliens has been whether it could be exer- 
cised by the king without the consent of par- 
liament. It was formerly exercised by the 
king, but in later times by parliament, which 
passed several acts on the subject between 
1793 and 1848. 2 Inst. 57; 1 Chalm. Op. 26; 
1 Bl. Comm. 260; Chit. Prerog. 49; 1 Phillim. 
Int. Law, c. 10, § 220, and note; 30 Pari. 
Hist. 157, 167, 188, 217, 229; 34 Hans. Deb. 
(1st Series) 441, 445, 471, 10G5-1071; 6 Law 
Rev. Quar. 27. 

Eminent English judges, sitting in the ju- 
dicial committee of the privy council, have 
gone very far in supporting the exclusion or 
expulsion, by the executive authority of a 
colony, of aliens having no absolute right to 
enter its territory or to remain therein. 

In 1837, in a case arising in the island of 
Mauritius, which had been conquered by 
Great Britain from France in 1810, and in 
which the law of France continued in force. 
Lord Lyndhurst, Lord Brougham, and Jus- 
tices Bosanquet and Erskine, although con- 
sidering it a case of great hardship, sustained 
the validity of an order of the English goA^- 
ernor, deporting a friendly alien, who had 
long resided and carried on biisiness in the 
island, and had enjoyed the privileges and 
exercised the rights of a person duly domi- 
ciled, but who had not, as required by the 
French law, obtained from the colonial gov- 
ernment formal and express authority to es- 
tablish a domicile there. In re Adam, 1 
Moore, P. C. (N. S.) 460. 

In a recent appeal from a judgment of the 
supreme court of the colony of Victoria, a 
collector of customs, sued by a Chinese immi- 
grant for preventing him from landing in the 
colony, had pleaded a justilication under the 
order of a colonial minister claiming to exer- 
cise an alleged prerogative of the crown to 
exclude alien friends, and denied the right of 
a court of law to examine his action, on the 
groimd that what he had done was an act of 
state; and the plaintiff had demurred to the 
plea. Lord Chancellor Halsbury, speaking 
for himself, for Lord Herschell, (now lord 
chancellor.) and for other lords, after decid- 
ing against the plaintiff on a. question of 
statutory construction, took occasion to ob- 
serve: "The facts appearing on the record 
raise, quite apart from the statutes referred 
to, a grave question as to the plaintiff's right 



to maintain the action. He can only do so if 
he can establish that an alien has a legal 
right, enforceable by action, to entei' British 
territory. No authority exists for the propo- 
sition that an alien has any such right. Cir- 
cumstances may occur in which the refusal 
to permit an alien to land might be such an 
interference with international comity as 
would properly give rise to diplomatic re- 
monstrance from the country of which he 
was a native; but it is quite another thing to 
assert that an alien, excluded from any part 
of her majesty's dominions by the executive 
government there, can maintain an action in 
a British court, and raise such questions as 
were argued before their lordships on the 
present appeal, — whether the proper officer 
for giving or refusing access to the country 
has been duly authorized by his own colonial 
government, whether the colonial govern- 
ment has received sufficient delegated author- 
ity from the crown to exercise the authority 
M'hich the crown had a right to exercise 
through the colonial government if properly 
communicated to it, and whether the crown 
has the right, without parliamentary authori- 
ty, to exclude an alien. Their lordships can- 
not assent to the proposition that an alien re- 
fused permission to enter British territoi-y 
can, in an action in a British court, compel the 
decision of such matters as these, involving 
delicate and difficult constitutional questions 
affecting the respective rights of the crown 
and parliament, and the relations of this 
country to her self-governing colonies. When 
once it is admitted that there is no absolute 
and unqualified right of action on behalf of 
an alien refused admission to British terri- 
tory, their lordships are of opinion that it 
would be impossible, upon the facts which 
the demurrer admits, for an alien to main- 
tain an action." Musgrove v. Chim Teeong 
Toy, [1891] App. Cas. 272, 282, 283. 

The right to exclude or to expel all 
aliens, or any class of aliens, absolutely or 
upon certain conditions, in war or in peace, 
being an inherent and inalienable right of 
every sovereign and independent nation, es- 
sential to its safety, its independence, and 
its welfare, the question now before the 
onvt is whether tlie manner in which con- 
gress has exercised this right in sections 6 
and 7 of the act of 1892 is consistent with 
the constitution. 

Q'he United State.? are a sovereign and 
independent nation, and are vested by the 
constitution with the entire control of in- 
tirnational relations, and with all the pow- 
ers of government necessary to maintain 
tftat control, and to make it oITective. The 
only government of this country which oth- 
ei- nations recognize or treat with is the 
government of tho Union, and the only 
Aiviericau flag known throughout the world 
is the flag of the United States. 

The constitution of the United States 
speaks with no uncertain sound upon tliis 
subject. That insti-ument, established by 



84 



THE POLICE POWER. 



tbe people of the United States as the fiin- 
dameutal law of the land, has confen-ed 
upon the president the executive power; has 
made hiui the commander in chief of the 
aimy and navy; has authorized him, by and 
witb the consent of the senate, to malie 
treaties, and to appoint ambassadore, pub- 
lic ministers, and consuls; and has made 
it his duty to take care that the laws be 
faithfidly executed. The constitution has 
granted to congress the power to regulate 
commerce with foreign nations, including the 
entrance of ships, the importation of goods, 
and the bringing of persons into tlie ports 
of the United States; to establish a uni- 
form nile of naturalization; to detine and 
punish piracies and felonies committed on 
tlie high seas, and offenses against the law 
of nations; to dwlai'e war, grant lettere 
oi: marque and repilsal, and make rules con- 
cerning captures on land and water; to 
raise and support armies, to provide and 
maintain a navy, and to make rules for the 
government and regulation of the land and 
naval forces; and to make all laws neces- 
saiy and proper for cai'rying into execution 
these powers, and all other powei-s vesited 
by the constitution in the government of 
the United States, or in any department or 
otttcer thereof. And the several states are 
expressly forbidden to enter into any treaty, 
alliance, or confederation; to grant letters 
of marque and reprisal; to enter into any 
agreement or compact with another state, 
or with a foreign power; or to engage in 
war, unless actually invaded, or in sucli im- 
minent danger as will not admit of delay. 

In exercising the great power which the 
people of the United States, by establish- 
ing a wi'itten constitution as the supreme 
and paramount law, have vested in this 
court, of determining, whenever the ques- 
tion is properly broiiglit before it, whether 
the acts of the legislature or of the execu- 
tive are consistent with the constitution, 
it behooves the court to be careful that it 
doe^•. not undertalie to pass upon political 
questions, the final decision of which has 
been committed by the constitution to the 
other departments of the government. 

As long ago said by Chief Justice Mar- 
xian, and since constantly maintained by 
this court: "The soiiud construction of the 
constitution must allow to the national leg- 
islature tliat discretion, with respect to the 
menus by which the powers it coufei-s ar^i 
to be carried into execution, which will en- 
able tliat body to perform the high duties 
assigned to it, in tlie manner most benefi- 
cial to the people. Let the end be legifi- 
mate, let it be within the scope of the con- 
stitution; and all means which are appro- 
priate, which are plainly adapted to that 
end, which are not prohibited, but consist- 
ent with the letter and spirit of the consti- 
tution, are constitutional." "Where the 
law is not prohibited, and is really calcu- 
lated to effect any of the objects intrusted 



to the government, to undertake here to in- 
quire into the degree of its necessity' would 
be to pass the line wliich circumscribes the 
judicial department, and to tread on legis- 
lative ground. This court disclaims all pre- 
tensions to such a power." McCulloch v. 
Maryland, 4 Wheat. 316, 421, 423; Juilliard 
V Greenman, 110 U. S. 421, 440, 4,j0, 4 Sup. 
Ct. Rep. 122; Ex parte Yarbrough, 110 U. 
S. 651, 6.58, 4 Sup. Ct Rep. 152; In re Ra- 
pier, 143 U. S. 110, 134, 12 Sup. Ct. Rep. 
374; Logan v. U. S., 144 U. S. 2G3, 283, 12 
Sup. Ct. Rep. 617. 

The power to exclude or to expel aliens, 
being a power aft'ecting international rela- 
tions, is vested in the political departments 
of the government, and is to be regulated 
by treatj' or by act of congress, and to be 
executed by the executive autliority accord- 
ing to the regulations so established, except 
so far as the judicial department has been 
authorized by treaty or by statute, or is re- 
quired by the paramoimt law of the con- 
stitution, to intervene. 

In Nishimura Ekiu's Case, it was ad- 
judged that, although congress might, if it 
saw fit, authorize the courts to investigate 
and ascertiiin the facts upon which the 
alien's right to land was made by tlie stat- 
utes to depend, yet congress might intrust 
the final determination of those facts to 
an executive officer; and that, if it did so, 
his order was due process of law, and no 
other tribunal, unless expressly authorized 
by law to do so, was at liberty to re-exam- 
ine tlie evidence on wliich he acted, or to 
controvert its sufticiency. 142 U. S. 660, 12 
Sup. Ct. Rep. 336. 

The power to exclude aliens, and the 
power to expel them, rest upon one founda- 
tion, are derived from one source, are sup- 
ported by the same reasons, and are in 
truth but parts of one and the same power. 

The power of congress, therefore, to ex- 
pel, like the power to exclude, aliens, or 
any specified cla.ss of aUen.s, from the coun- 
ti-y, may be exercised entirely through ex- 
ecutive otficei-s; or congress may call in the 
aid of the judiciaiy to ascertain any con- 
ft^sted facts on which an alien's right to be 
in the country has been made by congress 
to denend. 

(Jongress, having the right, as it may see 
fit, to expel aliens of a particular class, or 
to permit them to remain, has undoubtedly 
the right to provide a system of registra- 
tion and identification of the membere of 
that class witliin the countiy, and to take 
all proper means to cany ouc the system 
which it provides. 

It is no new thing for the lawmaking 
power, aciting either tlirough treaties made 
by the president and senate, or by the more 
common method of acts of congress, to sub- 
mit the decision of questions, not necessarily 
of judicial cognizance, either to the final 
determination of executive officei-s, or to the 
decision of such officers in the first instance. 



POIJCE POWER VESTED IN^ CONGRESS. 



85 



with such opportunity for judicial review 
of their action as congress may see fit to 
authorize or permit. 

For instance, the surrender, pursuant to 
treaty stipulations, of persons residing or 
found in this country, and charged with 
■crime in another, may be made by the ex- 
ecutive authority of. the president alone, 
when no provision has been made by treaty 
or by statute for an examination of the 
case by a judge or magistrate. Such was 
tlie case of Jonatlian Robbins, under article 
27 of the treaty witii Great Britain of 1794, 
in which the president's power in this re- 
gard was demonstrated in the masterly and 
conclusive argument of John Marshall in 
the house of representatives. 8 Stat. 129; 
Whai-t. State Tr. 392; U. S. v. Nash, Bee, 
286, 5 Wheat, append. 3. But provision 
may be made, as it has been by later 
acts of congress, for a preliminary exam- 
ination before a judge or commissioner; 
and in such case the sufficiency of the 
evidence on which he acts cannot be re- 
viewed by any other tribrmal, except as 
permitted by statute. Act Aug. 12, 1848, 
c. 167, (9 Stat. 302;) Rev. St. §§ 5270-5274; 
Ex parte Metzger, 5 How. 176; Benson v. 
McMahon, 127 U. S. 457, 8 Sup. Ot. Rep. 
1240; In re Luis Oteiza y Cortes, 136 U. S. 
330, 10 Sup. Ct. Rep. 1031. 

So claims to recover back duties illegally 
exacted on imports may, if congress so pro- 
vides, be linally determined by the secretary 
of the ti-easury. Gary v. Curtis, 3 How. 
236; Curtis v. Fiedler, 2 Black, 461, 478, 
479; Amson v. Murphy, 109 U. S. 238, 240, 
3 Sup. Ct. Rep. 184. But congress may, as 
it did for long periods, permit them to be 
tried by suit against the collector of cus- 
toms; or it may, as by the existing stat- 
utes, provide for their determination by a 
board of general appraisers, and allow the 
decisions of that board to be reviewed by 
the courts in such particulai-s only as may 
be prescribed by law. Act Jime 10, 1890, 
c. 407, §§ 14, 15, 25, (26 Stat. 137, 138, 141;) 
In re Fassett, 142 U. S. 479, 486, 487, 12 
Sup. Ct. Rep. 295; Passavant v. U. S., 148 
U. S. 214, 13 Sup. Ct. Rep. 572. 

To repeat the careful and weighty words 
uttered by Mr. Jusitice Curtis in delivering 
a unanimous judgment of this court upon 
the question what is due process of law: 
"To avoid misconstruotion upon so grave a 
subject, we think it proper to state that 
we do not consider congress can either 
withdraw from judicial cognizance any mat- 
ter wliich, from its nature, is the subject 
of a suit at the common law or in equity 
or admiralty, nor, on the other hand, can 
it bring under the judicial power a matter 
which, from its nature, is not a subject for 
judicial determination. At the same time 
there are matters involving public rig^'hts, 
which may be presented in such form that 
the judicial power is capable of acting on 
them, and which are susceptible of judi- 



cial determination, but which congress may 
or may not bring vriithin the cognizance of 
the courts of the United States, as it may 
deem proper." Murray v. Hoboken, etc., 
Co., 18 How. 272, 284. 

Before examining in detail the provisions 
of the act of 1892, now in question, it will 
be convenient to refer to tlie previous stat- 
utes, treaties, and decisions upon the sub- 
ject. 

The act of congress of July 27, 1868, c. 
249, (re-enacted in sections 1999-2001, Rev. 
St.,) began with these recitals: "Whereas, 
the right of expatriation is a natural and 
inherent right of all people, indispensabLs 
to the enjoyment of the rights of life, lib- 
erty, and the pursuit of happiness; and' 
whereas, in the recognition of this principle 
this government has freely received emi- 
grants from all nations, and invested them 
with the rights of citizenship." It then de- 
clared that any order or decision of any 
officer of the United States to the contrary 
was inconsistent with the fundamental prin- 
ciples of this government; enacted that "all 
naturalized citizens of the United States, 
while in foreign states, shall be entitled 
to and shall receive from this government 
the same protection of persons and property 
that is accorded to native-bom citizens in 
like situations and circumstances;" and 
made it tlie duty of the president to take 
measures to protect the rights in that re- 
spect of "any citizen of the United States." 
15 Stat. 223. 224. 

That act, like any other, is subject to 
alteration by congress whenever the public 
welfare requires it. The right of pi'otection 
Avliich it confers is limited to citizens of the 
United States. Chinese persons, not born 
in this countiy, have never been recognized 
as citizens of the United States, nor author- 
ized to become such under the natui*ahza- 
tion laws. Rev. St. (2d Ed.) §§ 2165, 2169; 
Acts April 14, 1802, c. 28, (2 Stat. 153;) 
May 26, 1824, c. 186, (4 Stat. 69;) July 14, 
1870, c. 254, § 7, (16 Stat. 256;) Feb. 18, 
1875, c. 80. (18 Stat. 318;) In re Ah Yun. 
5 Sawy. 155; 5 Act of May 6, 1882, c. 126, 
§ 14, (22 Stat. 61.) 

The treaty made between the United 
States and China on July 28, 1868, contained 
the following stipulations: 

"Art. 5. The United States of America 
and the emperor of China cordially recognize 
the inherent and inalienable right of man to 
change his home and allegiance, and also the 
mutual advantage of the free migration and 
emigration of their citizens and subjects, re- 
spectively, from one country to the other, 
for purposes of curiosity, of trade, or as per- 
manent residents. 

"Art. 6. Citizens of the United States visit- 
ing or residing in China, * * * and, recipro- 
cally, Chinese subjects visiting or residing in 
the United States, shall enjoy the same privi- 

5 Fed. Cas. No. 104. 



S6 



THE POLICE POWER. 



leges, immunities, and exemptions, in re- 
spect to travel or residence, as may there be 
enjoyed by the citizens or subjects of the 
most favored nation. But notliing lierein 
contained shall be held to confer naturaliza- 
tion upon citizens of the United States in 
Cliina, nor upon tlie subjects of China in the 
United States." IG Stat. 740. 

After some years' experience under that 
treaty, the government of the United States 
was brought to the opinion that tlie pres- 
ence within our territory of large numbers 
of Chinese laborers, of a distinct race and 
religion, remaining strangers in the land, re- 
siding apart by themselves, tenaciously ad- 
hering to the customs and usagjs of their 
own country, unfamiliar with our institu- 
tions, and apparently incapable of assimi- 
lating with our people, might endanger good 
order, and be injurious to the public inter- 
ests, and therefore requested and obtained 
from China a modification of the treaty. 
Chew Heong v. U. S., 112 U. S. 530, 542, 543, 
5 Sup. Ct. Rep. 255; Chae Chan Ping v. U. 
S., 130 U. S. 581, 595, 596, 9 Sup. Ct. Rep. 
623. 

On November 17, 1880, a supplemental 
treaty was accordingly concluded between 
the two countries, which contained the fol- 
lowing preamble and stipulations: 

"Whereas, the government of the United 
StMtes, because of the constantly increasing 
immigration of Chinese laborers to the ter- 
ritory of the United States, and the embar- 
rassments consequent upon such immigra- 
tion, now desires to negotiate a modification 
of the existing treaties whicli sliall not be in 
direct contravention of their spirit: 

"Article 1. Whenever, in the opinion of the 
government of the United States, tlie com- 
ing of Cliinese laborers to the United States, 
or their residence therein, affects or threat- 
ens to affect the interests of that country, 
or to endanger the good order of the said 
country, or of any locality within the terri- 
tory thereof, the government of China 
agrees that the government of the United 
States may regulate, limit, or suspend such 
coming or residence, but may not absolutely 
proliibit it. The limitation or suspension 
shall be reasonable, and shall apply only to 
Chinese who may go to the United States 
as laborers, other classes not being included 
in tlae limitations. Legislation taken in re- 
gard to Chinese laborers will be of such a 
character only as is necessary to enforce the 
regulation, limitation, or suspension of im- 
migration, and immigrants shall not be sub- 
ject to personal maltreatment or abuse. 

"Art. 2. Chinese subjects, whether pro- 
ceeding to the United States as teachers, 
students, merchants, or from curiosity, to- 
getlier with their body and household serv- 
ants, and Chinese laborers wlio are now in 
the United States, shall be allowed to go and 
come of their own free will and accord, and 
shall be accorded all the rights, privileges, 
immunities, and exemptions which are ac- 



corded to the citizens and subjects of tlie 
most favored nation. 

"Art. 3. If Chinese laborers, or Chinese of 
any other class, now either permanently or 
temporarily residing in the territory of the 
United States, meet with ill treatment at 
the hands of any other persons, the govern- 
ment of the United States will exert all its 
power to devise measures for their protec- 
tion, and to secure to them the same rights, 
privileges, immunities, and exemptions as 
may be enjoyed by the citizens or subjects 
of the most favored nation, and to which 
they are entitled by treaty." 22 Stat. 826, 
827. 

The act of May 6, 1882, c. 126, entitled "An 
act to execute certain treaty stipulations re- 
lating to Chinese," and amended by the act 
of July 5, 1884, c. 220, began with the recital 
thai, "in the opinion of the government of 
tlie United States, the coming of Chinese la- 
borers to this counti-y enaangers tlie good 
order of certain localities within the terri- 
tories thereof;" and, in section 1. suspended 
thf i:- coming for 10 years, and enacted tliat it 
should "not be lawful for any Chinese laborer 
to come from any foreign port or place, or, 
having so come, to remain within the United 
States;" in section 3, that this provision 
should not apply to Chinese laliorers wlio 
were in the United States on November 17, 
If-SG, or who came here within 90 days after 
the passage of the act of 1882, and who 
should produce evidence of that fact, as after- 
wards required by the act, to the master of 
the vessel and to the collector of the port; 
and, in section 4, that "for the purpose of 
properly identifying Chinese laborers who 
were in the United States" at such time, "and 
in order to furnish them with the proper evi- 
dence of their right to go from and come to 
the United States," as provided by that act 
and by the treaty of November 17, 1880, the 
collector of customs of the district from 
which any Chinese laborers should depart 
from the United States by sea should go on 
board the vessel, and make and register a 
list of them, with all facts necessary for their 
identification, and should give to eacli a cor- 
responding certificate, whicli should entitle 
him "to return to and re-enter the United 
States, upon producing and delivering the 
same to the collector of customs" to be can- 
celed. Tlie form of certificate prescribed by 
the act of 1884 differed in some particulars 
from that prescribed by the act of 1882, and 
the act of 1884 added that "said certificate 
shall be the only evidence to establish his 
right of re-entry." Each act further enacted, 
in section 5, that any such Chinese laborer, 
being in the United States, and desiring to 
depart by land, should be entitled to a like 
certificate of identity; and, in section 12, 
that no Chinese person sliould be permitted 
to enter the United States by land Avithout 
producing such a certificate, and that "any 
Chinese pei-son found unlawfully within the 
United States shall be caused to be removed 



POLICE POWER VESTED IN CONGRESS. 



87 



therefrom to the country from whence he 
came, and at the cost of the United States, 
after being brought before some justice, 
judge, or commissioner of a court of the 
United States, and fomid to be one not law- 
fully entitled to be or remain in the United 
States." The act of 1SS4 further enacted, 
in section 16, that a violation of any of the 
provisions of the act, the punishment of 
which was not therein otherwise provided 
for, should be deemed a misdemeanor, and 
be punishable by fine not exceeding $1,000, or 
by imprisonment for not more than one year, 
or by both such fine and imprisonment. 22 
Stat. 58-60; 23 Stat. 115-118. 

Under those acts this court held, in Chew 
Heong V. U. S., 112 U. S. 536, 5 Sup. Ct. Rep. 
255, that the clause of section 4 of the act of 
1884, making the certificate of identity the 
only evidence to establish a right to re-enter 
the United States, was not applicable to a 
Chinese laborer who resided in the United 
States at the date of the treaty of 1880, de- 
parted by sea before the passage of the act 
of 1882, remained oiit of the United States 
until after the passage of the act of 1884, 
and then returned by sea; and in U. S. v. 
Jung Ah Lung, 124 U. S. 621, 8 Sup. Ct. Rep. 
663, that a Chinese laborer, who resided in 
the United States at the date of the treaty 
of 1880, and until 1883. when he left San 
Francisco for China, taldng with lum a cer- 
tificate of identity from the collector of the 
port tn the form provided by the act of 1882, 
which was stolen from him in China, was 
entitled to land again in the United States 
in 1885, on proving by other evidence these 
facts, and his identity with the person de- 
scribed in the register kept by the collector 
of customs as the one to whom that certifi- 
cate was issued. 

Both those decisions proceeded upon a con- 
sideration of the various provisions of the 
acts of 1882 and 1884, giving weight to the 
presumption that they should not, unless un- 
avoidably, be construed as operating retro- 
spectively, or as contravening the stipula- 
tions of the treaty. In the first of those 
cases Justices Field and Bradley, and in 
the second case Justices Field. Harlan, and 
Lamar, dissented from the judgment, being 
of opinion that the necessary construction of 
those acts was against the Chinese laborer; 
and in none of the opinions in either case 
was it suggested that the acts in question, if 
construed as contended by the United States, 
and so as to contravene the treaty, would be 
unconstitutional or inoperative. 

In our jurisprudence it is well settled that 
the provisions of an act of congress, passed 
ia the exercise of its constitutional authority, 
on this, as on any other, subject, if clear and 
explicit, must be upheld by the courts, even 
in contravention of express stipulations in 
an earlier treaty. As was said by this court 
in Chae Chan Ping's Case, following previous 
decisions: "The treaties were of no greater 
legal obligation than the act of congress. 



By the constitution, laAvs made in pursu- 
ance thereof, and treaties made under au- 
thority of the United States, are both de- 
clared to be the supreme law of the land, 
and no paramount authority is given to one 
over the other. A treaty, it is true, is 
in its nature a contract between nations, 
and is often merely promissory in its cliar- 
acter, requiring legislation to carry its 
stipulations into effect. Such legislation will 
be open to future repeal or amendment. If 
the treaty operates by its own force, and 
relates to a subject within the power of con- 
gress, it can be deemed in that particular 
only the equivalent of a legislative act, to be 
repealed or modified at the pleasure of con- 
gress. In either case the last expression of 
the sovereign will must control." "So far 
as a treaty made by the United States with 
any foreign nation can become the subject 
of judicial cognizance in the courts of this 
coimtry it is subject to such acts as con- 
gress may pass for its enforcement, modifi- 
cation, or repeal." 130 U. S. 600, 9 Sup. Ct. 
Rep. 623. See, also, Foster v. Neilson, 2 
Pet. 253, 314; Edye v. Robertson, 112 U. S. 
580, 597-599, 5 Sup. Ct. Rep. 247; Whitney 
V. Robertson, 124 U. S. 190, 8 Sup. Ct. Rep. 
456. 

By the supplementary act of October 1, 
1888, c. 1064, it was enacted, in section 1, 
that "from and after the passage of this act 
it shall be milawful for any Chinese laborer, 
who shall at any time heretofore have been, 
or who may now or hereafter be, a resident 
within the United States, and who shall have 
departed or shall depart therefrom, and shall 
not have returned before the passage of this 
act, to return to, or remain in, the United 
States;" and, in section 2, that "no certifi- 
cates of identity, provided for in the fourth 
and fifth sections of tlie act to Avhich this is 
a supplement, shall hereafter be issued; and 
every certificate heretofore issued in pur- 
suance thereof is hereby declared void and 
of no effect, and the Chinese laborer claiming 
admission by virtue thereof shall not be 
permitted to enter the United States." 25 
Stat. 504. 

In the case of Chae Chan Ping, already 
often referred to, a Chinese laborer, who 
had resided in San Francisco from 1875 until 
June 2, 1887, when he left that port for 
China, having in his possession a certificate 
issued to him on that day by the collector of 
customs, according to the act of 1884, and 
in terms entitling him to return to the United 
States, returned to the same port on October 
8, 1888, and was refused by the collector 
pernussion to land, because of the provisions 
of the act of October 1, 1888, above cited. 
It was strongly contended in his behalf 
that by his residence in the United States 
for 12 years preceding June 2, 1887, in ac- 
cordance with the fifth article of the treaty 
of 1868, he had now a lawful right to be 
m the United States, and had a vested right 
to return to the United States, which could 



sa 



THE POLICE POWER. 



not be taken from him by any exorcise of 
mere legislative power by congress; that lie 
had acquired such a right by contract be- 
tween him and the United States, by virtue 
of his acceptance of the offer contained in 
the acts of 1882 and 1884, to every Chinese 
person then here, if he should leave the 
countiy, complying with specified conditions. 
to permit him to return; that, as applied to 
him, the act of 1888 was unconstitutional, as 
being a bill of attainder and an ex post facto 
laAv; and that the depriving him of his right 
to return was punishment, which could not 
be inflicted except by judicial sentence. The 
contention was thus summed up at the begin- 
ning of the opinion: "The validity of the 
.act is assailed as being in effect an expulsion 
from the countiy of Chinese laborei's, in vio- 
lation of existing treaties between the United 
States and tlie government of China, and of 
lights vested In them under the laws of 
congress." 130 U. S. 584-589, 9 Sup. Ct. 
Rep. (JL>4. 

Yet the court unanimously In^ld that the 
statute of 1888 was constitutional, and tliat 
the action of the collector in refusing him 
permission to land was lawful; and. after the 
passages already quoted, said: "The power of 
exclusion of foreigners being an incident of 
sovereignty belonging to the government of 
the Unite<l States, as a part of those sover- 
eign powers delegated by the constitution, 
the right to its exercise at any time when, 
in the judgment of the government, the 
Interests of the country require it, cannot 
be granted away or restrained on behalf 
of any one. The powers of government 
are delegated in trust to the Uniti?d States. 
and are incapable of transfer to any other 
parties. They cannot be abandoned or sur- 
rendered. Nor can their exercise be ham- 
pered, when needed for the public good, 
by any considerations of private interest. 
The exercise of these public tnists is not 
the subject of barter or contract. What- 
ever license, therefore. Chinese laborers may 
have obtained, previous to the act of 
October 1, 1888, to retum to the United 
States after their departure, is held at the 
will of the government, revocable at any 
time, at its pleasure." "The rights and inter- 
ests created by a treaty, which have become 
so vested that its expiration or abrogation 
Avill not destroy or impair them, are such as 
are connected with and lie in property, ca- 
pable of sale and transfer or other disposi- 
tion; not such as are personal and untrans- 
ferable in their character." "But far differ- 
ent is this case, where a continued suspen- 
sion of the exercise of a governmental power 
is insisted upon as a right, because, by the 
favor and consent of the government, it has 
not heretofore been exerted with respect to 
the appellant, or to the class to which he be- 
longs. Between property rights not affected 
by the termination or abrogation of a treaty, 
and expectations of benefits from the con- 
tinuance of existing legislation, there is as 



wide a difference as between realization and 
hopes." 130 U, S. G09, 610, Sup. Ct. Hep. 
G31. 

It thus appears that in that case it was 
directly adjudged, upon full argument and 
consideration, that a Chinese laborer, who had 
been admitted into the United States while 
the treaty of 18G8 was in force, by which 
the United States and China "cordially rec- 
ognize the inherent and inalienable right of 
man to change his home and allegiance, and al- 
so the mutual advantage of the free migration 
and emigration of their citizens and subjects, 
respectively, from one country to the other," 
not only for the purpose of curiosity or of 
trade, but "as permanent residents," and who 
had continued to reside here for 12 years, and 
who had then gone back to China, after re- 
ceiving a certificate, in the form provided by 
act of congress, entitling him to return to the 
United States, might be refused readmission 
into the United States, without judicial trial 
or hearing, and simply by reason of another 
act of congress, passed during his absence, 
and declaring all such certificates to be void, 
and prohibiting all Chinese laborers who had 
at any time been residents in the United 
States, and had departed therefrom and not 
returned before the passage of this act, from 
coming into the United States. 

In view of that decision, which, as before 
observed, was a unanimous judgment of the 
court, and which had the concurrence of all 
the justices who had delivered opinions in 
the cases arising under the acts of 1882 and 
1884. it appears to be impossible to hold that 
a Chinese laborer acquired, under any of the 
treaties or acts of congress, any right, as a 
denizen, or otherwise, to be and remain in 
this countiy. except by the license, permis ion, 
and suft"erance of congress, to be withdrawn, 
whenever, in its opinion, the public welfai'e 
might require it. 

By the law of nations, doubtless, aliens re- 
siding in a countiy, with the intention of 
making it a permanent place of abode, ac- 
quire, in one sense, a domicile there; and, 
while they are permitted by the nation to 
retain such a residence and domicile, are 
subject to its laws, and may invoke its pro- 
tection against other nations. This is recog- 
nized by tliose publicists who. as has been 
seen, maintain in the strongest terms the 
right of the nation to expel any or all aliens 
at its pleasure. Yatt. Law Nat. lib. 1, c. 19, 
§ 213; 1 Phillim. Int. Law, c. 18, § 321; Mr. 
Marcy, in Koszta's Case, 2 Whart. Int. Law 
Dig. § 198. See, also, Lau Ow Bew v. 
U. S., 144 U. S. 47, 62, 12 Sup. Ct. Rep. 
517; Merl. Repert. "Domicile," § 13. quoted 
in the case above cited, of In re Adam, 1 
Moore, P. C. (N. S.) 460, 472, 473. 

Chinese laborers, therefore, like all othi>r 
aliens residing in the United States for a 
shorter or longer time, are entitknl, so long 
as they are permitted by the government of 
the United States to remain in the country, 
to the safeguards of the constitution, and to 



POLICE POWER VESTED IK CONGRESS. 



89 



the protection of the laws, in regard to their 
rights of pei'son and of property, and to their 
civil and criminal responsibility. But they 
continue to be aliens, having talien no steps 
towards becoming citizens, and incapable of 
l>ecoming such under the naturalization laws; 
and therefore remain subject to the power of 
congress to expel them, or to order them to be 
removed and deported from the countiy, 
whenever, in its judgment, the'r removal 
is necessary or expedient for the public in- 
terest. 

Nothing inconsistent with these views was 
■decided or suggested by the court in Chy 
Lung v. Freeman, 92 U. S. 275, or in Yick 
Wo V. Hopkins. 118 U'. S. 356, 6 Sup. Ct. 
Hep. 1064, cited for the appellants. 

In Chy Lung v. Freeman, a statute of the 
state of California, restricting the immigra- 
tion of Chinese persons, was held to be un- 
constitutional and void, because it contra- 
vened the grant in the constitutional congress 
of the power to regulate commerce with for- 
eign nations. 

In Yick Wo v. Hopkins the point decided 
was that the fourteenth amendment of the 
constitution of the United States, forbidding 
a.ny state to deprive any person of life, 
liberty, or property witnout due process of 
law, or to deny to any person within its ju- 
risdiction the equal protection of tiie laws, 
was violated by a municipal ordinance of 
San Francisco, which conferred upon the 
board of supervisors arbitrary power, with- 
out regard to competency of persons or to 
fitness of places, to grant or refuse licenses 
to carry on public laundries, and which was 
executed by the supervisors by refusing 
licenses to all Chinese residents, and granting 
them to other persons under like circum- 
stances. The question there was of the 
power of a state over aliens continuing to 
reside within its jurisdiction, not of the pow- 
•er of the Unitetl States to put an end to their 
residence in the country. 

The act of May 5, 1892, c. 60, is entitled 
^'An act to prohibit the coming of Cliinese 
persons into the United States;" and pro- 
vides, in section 1, that "all laws now in 
force, prohibiting and regulating the coming 
into this country of Chinese persons and per- 
sons of Chinese descent, are hereby continii- 
ed in force for a pei'iod of ten years from the 
passage of this act." 

The rest of the act (laying aside, as imma- 
terial, section 5, relating to an application 
for a writ of habeas corpus "by a Chinese 
person seeking to land in the united States, 
to whom that privilege has been denied") 
deals with two classes of Chinese persons: 
First, those "not entitled to be or remain in 
the United States;" and, second, those "en- 
titled to remain in the United States." 
These words of description neither confer 
nor take away any right, but simply des- 
ignate the Chinese persons who were not, 
or who were, authorized or permitted to re- 
jnain in the United States under the laws 



and treaties existing at the time of the pas- 
sage of this act, but subject, nevertheless, to 
the power of the United States, absolutely or 
conditionally, to withdraw the permission, 
and to terminate the atithority to remain. 

Sections 2-4 concern Chinese "not lawfully 
entitled to be or remain in the United 
States," and provide that, after trial before 
a justice, judge, or commissioner, a "Chinese 
person, or person of Chinese descent, con- 
victed and adjudged to be not lawfully en- 
titled to be or remain in the United States," 
shall be imprisoned at hard labor for not 
more than a year, and be afterwards removed 
to China, or other country of which he ap- 
pears to be a citizen or subject. 

The subsequent sections relate to Chinese 
laborers "entitled to remain in the United 
States" under previous laws. Sections 6 and 
7 are the only sections which have any bear- 
ing on the cases before us. and the only ones, 
thereiore, the constniction or effect of which 
need now be considered. 

The manifest objects of these sections are 
to provide a system of registration and iden- 
tification of such Chinese laborers, to require 
them to obtain certificates of residence, and, 
ir they do not do so within a year, to have 
them deported from the United States. 

Section 6, in the first place, provides that 
"it shall be the duty of all Chinese laborers, 
within the limits of the United States at the 
time of the passage of this act, and who are 
entitled to remain in the United States, to 
apply to the collector of internal revenue of 
their respective districts, within one year 
after the passage of this act, for a certificate 
of residence." This provision, by making it 
the duty of the Chinese laborer to apply to 
the collector of internal revenue of the dis- 
trict for a certificate, necessarily implies a 
cc rrelative duty of the collector to grant him 
a certificate, upon due proof of the requisite 
facts. AVhat this proof shall be is not de- 
fined in tlxe statute, but is committed to the 
supervision of the secretary of the treasury 
by section 7, which directs him to make such 
rules and regulations as may be necessary 
for tlie efficient execution of the act, to pre- 
scribe the necessary forms, and to make such 
provisions that certificates may be procured 
in localities convenient to the applicants, and 
without charge to them; and the secretary 
of the treasury has, by such rules and regu- 
lations, provided that the fact of residence 
shall be proved by "at least one credible wit- 
ness of good character," or, in case of neces- 
sity, by other proof. The statute and the 
regulations, in order to make sure that every 
such Cuiuese laborer may have a certificate, 
in tlie nature of a passport, with which he 
may go into any part of the United States, and 
that the United States may preserve a record 
of all stich certificates issued, direct that a 
duplicate of each certificate shall be recorded 
in the otfice of the collector who granted it, 
and may be issued to the laborer upon proof 
of loss or destruction of his original certifl- 



90 



THE POLICE POWER. 



qate. There can be no doubt of the validity 
of these provisions and regulations, unless 
they are invalidated by the other provisions 
of section (>. 

This section proceeds to enact that any 
Chinese laborer within the limits of the Unit- 
ed States, who shall neglect, fail, or refuse 
to apply for a certificate of residence within 
the year, or who shall afterwards be found 
within the jurisdiction of the United States 
without such a certificate, "shall be deemed 
and adjudged to be imlawfuUy witliin the 
United States." The meaning of this clause, 
as shown by those which follow, is not that 
this fact shall thereupon be held to be conclu- 
sively established against him, but only that 
the want of a certificate shall be prima facie 
evidence that he is not entitled to remain in 
the United States; for the section goes on to 
direct that he "may be arrested by any cust 
toms official, collector of internal revenue or 
his deputies. United States marshal or his 
deputies, and taken before a United States 
judge;"' and that it shall thereupon be the 
duty of the judge to order that the laborer 
"be deported from the United States" to 
China, (or to any other country which he is a 
citizen or subject of, and which does not de- 
maud any tax as a condition of his removal 
to it,) "unless he shall establish clearly, to 
the satisfaction of said judge, that by reason 
of accident, siclvuess, or other unavoidable 
cause lie has been unable to procure his cer- 
tificate, and to the satisfaction of the court, 
and by at least one credible white witness, 
that he was a resident of the United States at 
the time of the passage of this act; and if, up- 
on the hearing, it shall appear tliat he is so en- 
titled to a certificate, it sliall be granted upon 
his paying the cost. Should it appear that 
said Chinaman had prociired a certificate 
which has been lost or destroyed, he shall be 
detained, and judgment suspended a reason- 
able time, to enable him to procure a dupli- 
cate from the olRcer granting it; and in such 
CJises the cost of said arrest and trial shall 
be in the discretion of the court." 

For the reasons stated in the earlier part 
of this opinion, congress, mider the power 
to exclude or expel aliens, might have di- 
I'ected any Chinese laborer found in the Unit- 
ed States without a certificate of residence 
to be removed oxit of the counti-y by execu- 
tive officers, without judicial trial or exami- 
nation, just as it might have authorized such 
officers absolutely to prevent his entrance 
into the country. But congress has not un- 
dertaken to do this. 

The effect of the provisions of section 6 of 
the act of 1892 is that, if a Chinese laborer, 
after the opportunity afforded him to obtain 
a certificate of residence within a year, at a 
convenient place, and without cost, is foimd 
without such a certificate, he shall be so far 
presumed to be not entitled to I'emain within 
the United States that an officer of the cus- 
toms, or a collector of intei*nal revenue, or a 
marshal, or a deputy of either, may arrest 



him, not with a view to imprisonment or 
punishment, or to his immediate deportation 
without further inciuiry, but in order to take 
him before a judge, for the purpose of a ju- 
dicial hearing and determination of the only 
facts wl)icb. midor the act of cngress, can 
have a material bearing upon the question, 
whether he shall be sent out of the country ,^ 
or be permitted to remain. 

The powers and duties of the executive 
officers named being ordinarily limited to 
their own districts, the reasonable inference 
is that they must take him before a judge 
within the same judicial district; and such 
was the course pursued in the cases before 
us. 

The designation of the judge, in general 
terms, as "a United States judge," is an apt 
and sufficient description of a judge of a 
court of the United States, and is equivalent 
to or synonymous witli the designation, in 
otliier statutes, of the judges authorized to 
issue writs of habeas corpus, or warrants to 
arrest persons accused of crime. Rev. St. 
§§ 752, 1014. 

When, in the form prescribed by law, the 
executive officer, acting in behalf of the 
United States, brings the Chinese laborer 
bofoi'e the judge, in order that he may be 
heard, and the facts upon which depends his 
right to remain in the country be decided, 
a case is duly submitted to the judicial 
power; for here are all the elements of a 
civil case, — a complainant, a defendant, and 
a judge, — actor, reus, et judex. 3 Bl. Comm. 
25; Osborn v. Bank, 9 Wheat. 738, 819. No 
formal complaint or pleadings are required, 
and the want of them does not affect the au- 
thority of the judge or the validity of the 
statute. 

If no evidence is offered by the Chinaman, 
the judge makes the order of deportation as 
upon a default. If he produces competent 
evidence to explain the fact of his not hav- 
ing a certificate, it must be considered by 
the judge; and if he thereupon appears to be 
entitled to a certificate, it is to be granted 
to him. If he proves that the collector of 
internal revenue has unlawfully refused to 
give him a certificate, he proves an "una- 
voidable cause," within the meaning of the 
act. for not procuring one. If he proves that 
he had procured a certificate, which has 
been lost or destroyed, he is to be allowed a 
reasonable time to procure a duplicate there- 
of. 

The provision which puts the burden of 
proof upon him of rebutting the presump- 
tion arising from his having no certificate, 
as well as the requirement of proof "by at 
least one credible white witness that he was 
a resident of the United States at the time 
of the passage of this act," is within the 
acknowledged power of every legislature to 
prescribe tlie evidence which shall be re- 
ceived, an ' the effect of that evidence, in the 
courts of its own government. Ogden v. 
Saunders, 12 Wheat. 213, 262, 349; Pillow v. 



POLICE POWER VESTED I^vT CONGRESS. 



91 



Roberts, 13 How. 472, 476; Cliquofs Cham- 
pagne, 3 Wall. 114, 143; Ex parte Fisk, 113 
U. S. 713, 721, 5 Sup. Ct. Rep. 724; Holmes 
V. Hunt, 122 Mass. 505, 516-519. The com- 
petency of all witnesses, without regard to 
their color, to testify in the courts of the 
United States, rests on acts of congress, 
which congress may, at its discretion, mod- 
ify or repeal. Rev. St. §§ 858, 1977. The 
reason for requiring a Chinese alien, claim- 
ing the privilege of remaining in the United 
States, to prove the fact of his residence 
here at the time of the passage of the act 
"by at least one credible white witness," 
may have been tho experience of congress, as 
mentioned by Mr. Justice Field in Chae 
Chan Ping's Case, that the enforcement of 
former acts, under which the testimony of 
Chinese persons was admitted to prove 
similar facts, "was attended with great em- 
barrassment, from the suspicious nature, in 
many instances, of the testimony oifered to 
establish the residence of the parties, aris- 
ing from the loose notions entertained by 
the witnesses of the obligation of an oath." 
530 U. S. 598, 9 Sup. Ct. Rep. 627. And this 
requirement, not allowing such a fact to be 
pi'oved solely by the testimony of aliens in a 
like situation, or of the same race, is quite 
analogous to the provision, which has ex- 
isted for 77 years in the naturalization laws, 
by which aliens applying for naturalization 
must prove their residence within the hmits 
and under the jurisdiction of the United 
States, for five years next preceding, "by the 
oath or affirmation of citizens of the United 
States." Acts March 22, 1816, c. 32, § 2, (3 
Stat. 259;) May 24, 1828, c. 116, § 2, (4 Stat. 
311;) Rev. St. § 2165, cl. 6; 2 Kent, Comm. 
65. 

The proceeding before a United States 
judge, as provided for in section 6 of the 
act of 1892, is in no proper sense a trial and 
sentence for a crime or offense. It is simply 
the ascertainment, by appropriate and law- 
ful means, of the fact whether the condi- 
tions exist upon which congress has enacted 
that an alien of this class may remain with- 
in the country. The order of deportation is 
not a punishment for crime. It is not a 
banishment, in the sense in which that word 
is often applied to the expulsion of a citizen 
from his country by way of punishment. 
It is but a method of enforcing the return to 
his own country of an alien who has not 
compUed with the conditions upon the pex'- 
formance of which the government of the 
nation, acting within its constitutional au- 
thority, and through the proper departments, 
has determined that his continuing to re- 
side here shall depend. He has not, there- 
fore, been deprived of life, liberty, or prop- 
erty without due process of law; and the 
provisions of the constitution, securing the 
right of trial by jury, and prohibiting un- 
reasonable searches and seizures and cruel 
and unusual punishments, have no applica- 
tion. 



The question whether, and upon what con- 
ditions, these aliens shall be permitted to 
remain within the United States being one 
to be determined by the political depart- 
ments of the government, the judicial de- 
partment cannot properly express an opin- 
ion upon the wisdom, the policy, or the jus- 
tice of the measures enacted by congress in 
the exercise of the powers confided to it by 
the constitution over this subject. 

The three cases now before us do not 
differ from one another in any material par- 
ticular. 

In the first case the petitioner had wholly 
neglected, failed, and refused to apply to 
the collector of internal revenue for a cer- 
tificate of residence, and, being found with- 
out such a certificate after a year from the 
passage of the act of 1892. was arrested by 
the United States marshal, with the pur- 
pose, as the return states, of taking him be- 
fore a United States judge within the dis- 
trict; and thereupon, before any further pro- 
ceeding, sued out a writ of habeas corpus. 

In the second case the petitioner had like- 
wise neglected, failed, and refused to apply 
to the collector of internal revenue for a cer- 
tificate of residence, and, being found with- 
out one, was arrested by the marshal, and 
taken before the district judge of the United 
States, who ordered him to be remanded to 
the custody of the marshal, and to be de- 
ported from the United States, in accordance 
with the provisions of the act. The allega- 
tion in the petition that the judge's order 
was made "without any hearing of any kind" 
is shown to be untrue by the recital in the 
order itself (a copy of which is annexed to 
and made part of the petition) that he had 
failed to clearly establish to the judge's sat- 
isfaction that by reason of accident, sickness, 
or other unavoidable cause he had been un- 
able to procure a certificate, or that he had 
procured one, and it had been lost or de- 
stroyed. 

In the tlurd case the petitioner had, witlfin 
the year, applied to a collector of internal 
revenue for a certificate of residence, and 
had been refused it, because he produced, 
ana could produce, none but Chinese wit- 
nesses, to prove the residence necessary to 
entitle him to a certificate. Being found 
without a certificate of residence, he was ar- 
rested by the marshal, and taken before the 
United States district judge, and established 
to the satisfaction of the judge that, because 
of the collector's refusal to give him a cer- 
tificate of residence, he Avas without one by 
an unavoidable cause; and also proved, bj'' 
a Chinese witness only, that he was a resi- 
dent of the United States at the time of the 
passage of the act of 1892. Thereupon the 
judge ordered him to be remanded to the 
custody of the marshal, and to be deported 
from the United States, as provided in that 
act. 

It would seem that the collector of in- 
ternal revenue, when applied to for a certiti- 



^2 



THE POLICE POWER. 



Cftte, might properly decline to find the 
requisite fact of residence upon testimony 
which, by an express provision of the act, 
would be insufficient to prove that fact at a 
hearing before the judge. But if the col- 
lector might have received and acted upon 
.sucli testimony, and did, upon any ground, 
unjust itiably refuse a certificate of residence, 
the only ri>medy of the applicant was to prove 
by competent and sufiicient evidence at the 
hearing before the judge the facts requisite 
to entitle him to a certificate. To one of 
those facts— that of residence— the statute, 
which, for the reasons already stated, ap- 
pears to us to be within the constitutional 
authority of congress to enact, peremptorily 
requires at that hearing the testimony of a 



credible white witness; and it was because 
no such testimony was produced that the 
order of deportation was made. 

Upon careful consideration of the subject, 
the only conclusion which appears to us to 
be consistent with the principles of inter- 
national law, with the constitution and laws 
of the United States, and with the previous 
decisions of this court, is that in each of these 
cases the judgment of the circuit court dis- 
missing the writ of habeas corpus is right, 
and nmst be alRrmed. 

Mr. Chief Justice FULLER. Mr. Justice 
BREWER, and Mr. Justice FIELD dissent- 
ed. 



POLICE POWER OF THE STATES. 



m 



STATE OF MINNESOTA t. BARBER. 

(10 Sup. Ct. 862, 136 U. S. 313.) 

Supreme Court of the United States. May 19, 
1890. 

Appeal from the circuit court of the 
United States for the district of Minne- 
sota. 

Gordon E. Cole, for appellant. Alpheus 
H. Snow,L. T. Michener, J. E. McDonald, 
and John M. Butler, for State of Indiana, 
(by leave of court.) Jas. O. Broadhead, 
for State of Missoiiri, (by leave of court.) 
W. C. Goudy, Walter H. Sanborn, Wallace 
Pratt, and Geo. W. McCrary, for appellee. 

HARLAN, J. Henry E. Barber, the ap- 
pellee, was convicted, before a justice of 
the peace in Ramsey county, Minn., of the 
offense of having wrongfully and unlaw- 
fully offered and exposed for sale, and of 
having sold, for human food, 100 pounds 
of fresh, uncured beef, part of an animal 
slaughtered in the state of Illinois, but 
which had not been inspected in Minne- 
sota, and " certified " before slaugh ter by 
an inspector appointed under the laws of 
the latter state. Having been committed 
to the common jail of the county pursu- 
ant to a judgmentof imprisonment forthe 
term of 30 days, he sued out a writ of 
habeas corpus from the circuit court of the 
United States for the district of Minne- 
sota, and prayed to be discharged from 
such Imprisonment, upon the ground that 
the statute of that state, approved April 
16, 1889, and under which he was prose- 
cuted, was repugnant to the provision of 
the constitution giving congress power to 
regulate commerce among the several 
states, as well as to the provision de- 
claring that the citizens of each state shall 
be entitled to all privileges and immunities 
of citizens in the several states. Article 1, 
§8 ; article 4, § 2. The court below, speak- 
ing by Judge Nelson, held the statute to 
be in violation of both of these provisions, 
and discharged the prisonerfrom custody. 
In re Barber, 89 Fed. Rep. 641. A similar 
conclusion in reference to the same stat- 
ute had been previously reached by Judge 
Blodgett, holding the circuit court of the 
United States for the northern district of 
Illinois. Swift v. Sutphin, Id. 630. 

From the judgment discharging Barber 
the state has prosecuted the present ap- 
peal. Rev. St. § 764; 23 St. p. 437, c. 353. 

Attorneys representing persons interested 
in maintaining the validity of a statute of 
Indiana alleged to be similar to that of 
Minnesota were allowed to participate in 
the argument in this court, and to file 
briefs. 

The statute of Minnesota upon the va- 
lidity of which the decision of the case de- 
pends is as follows: 

"An act for the protection of the public 
health by providing for inspection before 
slaughter of cattle, sheep, and swine de- 
signed for slaughter for human food. 

"Section 1. The sale of any fresh beef, 
veal, mutton, lamb, or pork for human 
food in this state, except as hereinafter 
provided, is hereby pi-ohibited. 

"Sec. 2. It shall be the duty of the sev- 



eral local boards of health of the several 
cities, villages, boroughs, and townships 
within this state to appoint one or more 
inspectors of cattle, sheep, and swine, for 
said city, village, borough, or township, 
who shall hold their offices for one year, 
and until their successors are appointed 
and qualified, and whose authority and 
jurisdiction shall be territorially co-ex- 
tensive with theboard so appointing them ; 
and said several boards shall regulate the 
form of certificate to be issued by such in- 
spectors, and the fees to be paid them b.y 
the person applying for such inspection, 
which fees shall be no greater than are 
actually necessary to defray the costs of 
the inspection provided for in section three 
of this a,ct. 

"Sec. 3. It shall be the duty of the in- 
spectors appointed hereunder to inspect 
all cattle, sheep, and swineslaughtered for 
human food within their respective juris- 
dictions within twenty-four hours before 
the slaughter of the same, and, if found 
healthy, and in suitable condition to be 
slaughtered for human food, to give to the 
a])plicant a certificate in writing to that 
effect. If found unfit for food by reason of 
infectious disease, such Inspectors shall or- 
der the immediate removal and destruc- 
tion of such diseased animals, and no lia- 
bility for damages shall accrue by reason 
of such action. 

"Sec. 4. Any person who shall sell, ex- 
pose or offer for sale, for human food in 
this state, any fresh beef, veal, mutton, 
lamb, or pork whatsoever, which has not 
been taken from an animal inspected and 
certified before slaughter, by the proper 
local inspector appointed hereunder, shall 
be deemed guilty of a misdemeanor, and 
upon conviction thereof shall be punished 
by a fine of not more than one hundred 
dollars, or by imprisonment not exceeding 
three months, for each offense. 

"Sec. 0. Each and everj^ certificate made 
by inspectors under the provisions of this 
act shall contain a si atement to the effect 
that the animal or animals inspected, de- 
scribing them as to kind and sex, were at 
the date of such inspection free from all 
indication of disease, apparently in good 
health, and in fit condition, Avhen inspected, 
to be slaughtered for human food ; a dupli- 
cate of which certificate shall be preserved 
in the office of the inspector. 

"Sec. 6. Any inspector making a false 
certificate shall be liable to a fine of not less 
than ten dollars, nor more than fifty dol- 
lars, for each animal falsely certified to be 
fit for human food under the provisions of 
this act. 

"Sec. 7. This act shall take effect and be 
in force from and after its passage. '' Gen. 
Laws Minn. 1889, p. 51, c. 8. 

The presumption that this statute was 
enacted, in good faith, for the purpose ex- 
pressed in the title, namely, to protect the 
health of the people of Minnesota, cannot 
control thefinal determination of theciues- 
tion whether it is not repugnant to the 
constitution of the United States. There 
may be no purpose upon the part of a leg- 
islature to violate the provisions of that 
instrument, and yet a statute enacted by 
it, under the forms of law, may, by its nec- 
essary operation, be destructive of rights 



94 



THE POLICE POWER. 



granted or secured by the constitution. 
In such cases the courts must sustain the 
supreme law of the land by declaring the 
statute unconstitutional and void. This 
principle of constitutional interpretation 
has been often announced by this court. 
In Henderson v. Mayor, etc., 92 U. S. 259, 
20S. where a statute of New York, impos- 
ing burdensome and almost impossible 
conditions on the landing of passengei'S 
from vessels em ployed in foreign commerce, 
was held to be unconstitutional and void 
as a regulation of such commerce, the 
coui-t said that, "in whatever language a 
statute may be framed, its purpose must: 
be determined by its natural and reason- 
able effect. " In People v. CompagnieGen. 
Transatlantique, 107 U. S. 59, 6:J, 2 Sup. 
Ct. Piep. S7, where the question was as to 
the validity of a statute of the same state, 
which was attempted to be supi)orted as 
an inspection law authorized by section 
10, art. 1 of the constitution, and was so 
designated in its title, it was said: "A 
state cannot make a la\v designed to raise 
money to support paupers, to detect or 
prevent crime, to guard against disease, 
and to cure the sick, an inspection law, 
within the constitutional meaning of that 
Avord, by calling it so in the title. " So, in 
Soon Hing v. Crowley, 113 IT. S. 703, 710, 5 
Sui). Ct. Kei). 730: "The rule is general, 
with reference to the enactments of all leg- 
islative bodies, that the courts cannot in- 
quire into the motives of the legislators in 
passing them, except as they may be dis;- 
closed on the face of the acts, or infei-able 
from their operation, considered with ref- 
erence to the condition of the country and 
existing legislation. The motives of the 
legislators, considered as to the purposes 
they had in view, will always be presumed 
to be to accomplish that which follows as 
the natural and reasonable efl'ect of their 
enactments. " In Mugler v. Kansas, 123 IT. S. 
623, (i61, S Sup. Ct. Rep. 273, thecourt, after 
observing that every possible presumption 
is t(j be indulged in favor of the validity 
of a statute, said that the judiciary must 
obey the constitution, rather than the 
law-making department of the govern- 
ment, and must, upon its own responsibil- 
ity, determine whether, in any particular 
case, the limits of the constitution have 
been passed. It was added: " If , therefore, 
a statute purporting to have been enacted 
to protect the public health, the public 
moi-als,or the public safety, has no real or 
substantial relation to those objects, or is 
a palpable invasion of rights secured by 
the fundamental law, it is the duty of the 
courts to so adjudge, and thereby give ef- 
fect to the constitution." Upon the au- 
thority of those cases, and others that 
could be cited, it is our duty to inquire, in 
respect to the statute before us, not only 
whether there is a real or substantial rela- 
tion between its avowed objects and the 
means devised for attaining those objects, 
but whether, by its necessary or natural 
tjperation, it impairs or destroys rights 
secured by the constitution of the United 
States. 

Underlying the entire argument in be- 
half of the state is the proposition that 
it is impossible to tell, by an inspection of 
fresh beef, veal, mutton, lamb, or pork, de- 



signed for human food, whether or not it 
came from animals that were diseased 
when slaughtered; that inspection on the 
hoof, within a very short time before ani- 
mals are slaughtered, is the only mode by 
which their condition can be ascertained 
with certainty. And it is insisted with 
great confidence that of this fact the coui-t 
must take judicial notice. If a fact alleged 
to exist, and upon which the rights of par- 
ties depend, is within common experience 
and knowledge, it is one of which the 
courts will take judicial notice. Brown v. 
Piper, 91 U. S. 37, 42; Phillips v. Detroit, 
111 U. S. G04. GOG, 4 Sup. Ct. Rep. 5S0. But 
we cannot assent to the suggestion that 
the fact alleged in this case to exist is of 
that class. It may be the opinion of 
some that the presence of disease in ani- 
mals at the time of their being slaughtered 
cannot be determined by inspection of the 
meat taken from them; but we are not 
aware that such is the view universally, 
or even generally, entertained. But if, as 
alleged, the inspection of fresh beef, veal, 
mutton, lamb, or pork will not necessarily 
show whether the animal from which it 
was taken wasdiseased when slaughtered, 
il would not follow that a statute like the 
one l)efore us is within the constitutional 
power of the state to enact. On the con- 
trary, the enactment of a similar statute 
by each one of the states composing the 
Union would result in the destruction of 
commerce among the several states, so far 
as such commerce is involved in the trans- 
portation from one part of the country to 
another of animal meats designed for hu- 
man food, and entirely free from disease. 
A careful examination of the Minnesota 
act will place this construction of it be- 
yond question. 

The first section prohibits the sale of 
any fresh beef, veal, mutton, lamb, or pork 
for human food except as provided in that 
act. The second and third sections i)ro- 
vide that all cattle, sheep, and swine to be 
slaughtered fcjr human food within the re- 
spective jurisdictions of the inspectors 
shall be inspected, by the proper local in- 
spector appointed in Minnesota, within 24 
hours before the animals are slaughtered, 
and that a certificate shall be made by 
such inspector showing, if such be the fact, 
that the animals when slaughtered were 
found healthy and in suitable condition 
to be slaughtered for human food. The 
fourth section makes it a misdemeanor, 
punishable by fine or imi)risonment, for 
any one to sell, expose or offer for sale, for 
human food in the state, any fresh beef, 
veal, mutton, lamb, or pork, not taken 
from an animal inspected and "certified 
before slaughter by the proper local inspect- 
or" a|)pointed under that act. As the in- 
spection must take place within the 24 
hours immediately before the slaughter- 
ing, the act, by its necessary operation, 
excludes from the Minnesota market, prac- 
tically, all fresh beef, veal, mtitton, lamb, 
or i)ork — in whatever form, and altiK)tigh 
entirely sound, healthy, and fit f(jr human 
food — taken from animals slaughtered in 
other states, and directly tends to restrict 
the slaughtering of animals whose meat 
is to be sold in Minnesota for human food 
to those engaged in such business in that 



POLICE POWER OF THE STATES. 



state. This must be so, because thu time, 
expense, anrl labor of sending animals from 
points outside of Minnesota to points in 
that state, to be there inspected, and 
bringing them back, after inspection, to 
be slaughtered at the place from which 
they were sent (the slaughtering to take 
place within 24 hours after inspection, else 
the certificate of inspection becomes of no 
value) will be so great as to evniount to 
an absolute prohibition upon sales in Min- 
nesota of meat from animals not slaugh- 
tered within its limits. When to this is 
added the fact that the statute, by its nec- 
essary operation, prohibits the sale in the 
state of fresh beef, veal, mutton, lamb, or 
pork from animals that may have been in- 
spected carefully and thoroughly in the 
state where they were slaughtered, and 
before they were slaughtered, no doubt 
can remain as to its effect upon commerce 
among the several states. It will not do 
to say — certainly no judicial tribunal can 
with propriety assume — that the people of 
Minnesota may not, with due regard to 
their health, relj^ upon inspections in other 
states of animals there slaughtered for 
purposes of hiiman food. If the object of 
the statute had been to deny altogether 
the citizens of other states the privilege of 
selling, within the limits of Minnesota, for 
human food, any fresh beef, veal, mutton, 
lamb, or pork from animals slaughtered 
outside of that state, and to compel the 
people of Minnesota wishing to buy such 
meats either to purchase those taken from 
animals inspected and slaughtered in the 
state, or to incur the cost of purchasing 
them, when desired for their own domestic 
use, at points beyond the state, that ob- 
ject is attained by the act in question. 
Our duty to maintain the constitution 
will not permit us to shut our eyes to 
these obvious and necessary results of the 
Minnesota statute. If this legislation does 
not make such discrimination against the 
jiroducts and business of other states in 
favor of the products and business of Min- 
nesota as interferes with and burdens 
commerce among the several states, it 
would be difficult to enact legislation that 
would have that result. 

The principles we have announced are 
fully supported by the decisions of this 
court. In Woodruff v. Parham, 8 Wall. 
123, 140, which involved the validity of an 
ordinance of the city of Mobile, Ala., relat- 
ing to sales at auction, Mr. Justice Mil- 
ler, speaking for this court, said : " There 
is no attempt to discriminate injuriously 
against the products of other states, or 
the rights of their citizens ; and the case is 
not, therefore, an attempt to fetter com- 
merce among the states, or to deprive the 
citizens of other states of any privilege or 
immunity possessed by citizens of Ala- 
bama. But a law having such operation 
would, in our opinion, be an infringement 
of the provisions of theconstitution which 
relate to tho.se subjects, and therefore 
void." So, in Hinson v. Lott, Id. 148, 151, 
decided at the same time, upon a writ of 
eri'or from the supreme court of Alabama, 
it was said, in reference to the opinion of 
that court: "And it is also true, as con- 
ceded in that opinion, that congress has 
the same right to regulate commerce 



among the states that it has to regulate 
commerce with foreign nations, and that, 
whenever it exercises that power, all con- 
flicting state laws must give way, and 
that, if congress had made any regulation 
covering the matter in question, we need 
inquire no further. That court seems to 
have relieved itself of the objection by 
holding that the tax imposed by the state 
of Alabama was an exercise of the concur- 
rent right of regulating commerce remain- 
ing with the states until some regulation 
on the subject had been made by congress. 
But, assuming the tax to be, as we have 
supposed, a discriminating tax, levied ex- 
clusively upon theproducts of sister states, 
and looking to the consequences which 
the exercise of this power may produce if 
it be once conceded, amounting, as we 
have seen, to a total abolition of all com- 
mercial intercourse between the states, 
under the cloak of the taxing power, we 
are not prepared to admit that a state 
can exercise such a power, though con- 
gress may have failed to act on the subject 
in any manner whatever. " 

In Welton v. Missouri, 91 U. S. 275, 281, 
the court, speaking by Mr. Justice Field, 
declared to be unconstitutional a statute 
of Missouri imposing a license tax upon 
the sale by peddlers of certain kinds of 
personal property "not the grow^th, prod- 
uce, or manufacture" of that state, but 
which did not impose a like tax upon sim- 
ilar articles grown, produced, or manu- 
factured in Missouri. After observing that, 
if the tax there in question could be im- 
posed at all, the power of the state could 
not be controlled, however unreasonable 
and oppressive its action, the court said: 
"Imposts operating as an absolute exclu- 
sion of the goods would be possible; and 
all the evils of discriminating state legis- 
lation favorable to the interests of one 
state, and injurious to the interests of 
other states and countries, which existed 
previous to the adoption of the constitu- 
tion, might follow, and the experience of 
the last fifteen years shows would follow, 
from the action of some of the states. " 

In Railroad Co. v. Husen, 95 U. 8. 465, 
the court examined a statute of Missouri 
prohibiting, under penalties, any Texas, 
Mexican, or Indian cattle from being driv- 
en or otherwise convej^ed into, or remain- 
ing in, any county of the state, between 
the 1st day of March and the 1st day of 
November in each year, by any person or 
persons whatsoever. While admitting in 
the broadest terms the power of a state 
to pass sanitary laws, and laws for the 
protection of life, liberty, health, or prop- 
erty within its borders, to prevent con- 
victs, or persons and animals suffering 
under contagious or infectious diseases, 
from entering the state, and, for purposes 
of protection, to establish quarantine and 
inspections, the court, Mr. Justice Strong 
delivering its opinion, said that a state 
may not, "under the cover of exerting its 
police powers, sul)staiitially prohibit or 
burden either foreign or interstate com- 
merce. " The general ground upon which 
it held the Missouri statute to be uncon- 
stitutional was that its effect was "to ob- 
struct interstate commerce, and to dis- 
criminate between the property of citizens 



96 



THE POLICE POWER. 



of one state and that of citizens of other 
states. " 

In Guy V. Baltimore, 100 U. S. 434, 443, 
the court adjudged to be void an ordi- 
nance of the city of Baltimore, exacting 
from vessels using the puljlic wharves of 
that city, and laden with the products of 
otlier states, higher rates of wharfage than 
from vessels using the same wharves, and 
laden with the products of Maryland. 
"Such exactions," the court said, "in the 
name of wharfage, must be regarded as 
taxation upon interstate commerce. Mu- 
nicipal corporations, owning wharves up- 
on the i)ublic navigable waters of the 
United States, and (jnasi public corpoi-a- 
tions transporting tlie products of the 
country, cannot be permitted, by discrim- 
inations of that character, to impede 
commercial intercourse and traffic among 
the several states and with foreign na- 
tions. " 

The latest case in this court upon the 
subject of interstate commerce as affected 
by local enactments discriminating 
against the products and citizens of other 
states is Walling v. Michigan, 116 U. S. 
446, 4.55, 6 Sup. Ct. Rep. 4.54. We there 
held to be unconstitutional a statute of 
M chigan imposing a license tax upon per- 
sons ncjt residing, or having their princi- 
pal place of business, in that state, but 
whose business was that of selling, or so- 
liciting the sale of, intoxicating liquors to 
be shipped into the state from places with- 
out; a similar tax not being imposed in re- 
spect to the sale, and soliciting for sale, of 
liquors manufactured in Michigan. Mr. Jus- 
tice Braijley, delivering the opinion of the 
court, said: "A discriminating tax im- 
posed by a state operating to the disad- 
vantage of the products of otlier states 
when introduced into the first-mentioned 
state, is, in effect, a regulation in restraint 
of commerce among the states, and as 
such is a usurpation of the power con- 
ferred by the constitution upon the con- 
gress of the United States. " 

It is, however, contended in behalf of the 
state that there is in fact no interference 
by this statute with the bringingof cattle, 
sheep, and swine into Minnesota from oth- 
er states, nor any discrimination against 
the products or business of other states, 
for the reason — such is the argument — 
that the statute reiiuiring an inspection of 
animals on the hoof as a condition of the 
privilege of selling or offering for sale in 
the state the meats talien from them is 
api>licable alike to all owners of such ani- 
mals, whether citizens of Minnesota or 
citizens of other states. To this we answer 
that a statute may upon its face apply 
equally to the peoi)ie of all the states, and 
3'et be a regulation of interstate commerce 
which a state may not estal>lish. A bur- 
den imposed by a state upon interstate 
commerce is not to be sustained simi)ly 
because the statute imposing it applies 
alike to the people of all the states, includ- 
ing the people of the state enacting such 
statute. Robbins v. Shelby Taxing-Dist., 
120 U.S. 480, 497, 7 Sup.Ct. Rep. 592; Case of 
the State Freight Tax, 15 Wall. 232. The 
peoi)le of Minnesota have as much right to 
protection against the enactments of that 
state interfering with the freedom of com- 



merce among the states as have the peo- 
ple of other states. Although this statute 
is not avowedly or in terms directed 
against the bringing into Minnesota of the 
products of other states, its necessary ef- 
fect is to burden or obstruct commerce 
with other states, as involved in the trans- 
portation into that state, for purposes of 
sale there, of all fresh beef, veal, mutton, 
Iamb, or pork, however free from disease 
may have been the animals from which it 
was taken. 

The learne<I counsel for the state relies 
with confidence upon Patterson v. Ken- 
tucky, 97 U. S. 501, as supporting the prin- 
ciples for which he contends. In that case 
we sustained the constitutionalit3' of a 
statute of Kentucky forbidding the sale 
within that commonwealth of oils or 
fluids used for illuminating purposes, and 
the product of coal, petroleum, or other 
bituminous substances that would ignite 
at less than a certain temperature. Hav- 
ing a patent from the United States for an 
improved burning oil. Patterson claimed 
the right, by virtue of his patent, to sell 
anywhere in the United States the oil de- 
scribed in it, without regard to the in- 
S[)ection laws of any state enacted to pro- 
tect the public safety. It was held that 
the statute of Kentucky was a mere po- 
lice regulation embodying the deliberate 
judgment of that commonwealth that 
burning fluids, the product of coal, petro- 
leum, or other bituminous substances, 
which would ignite or permanently burn 
at less than a prescribed temperature are 
unsafe foi" illuminating purposes. We 
said that the patent was not a regulation 
of commerce, nor a license to sell the pat- 
ented article, liut a grant that no one else 
should manufacture or sell that article, 
and therefore a grant simply of an exclu- 
sive right in the discovery, which the 
national authority could protect against 
all interference; that it was not to be sup- 
posed " that congress intended to author- 
ize or regulate the sale within a state of 
tangible personal property which that 
state declares to be unfit and unsafe for 
use, and by statute has prohibited from 
being sold, or offered for sale, within her 
limits;" also, that "the right which the 
patentee or his assignee possesses in the 
propert\' created by the application of a 
patented discovery must be enjoyed sul)- 
ject to the complete and salutary power, 
with which the states have never pai'ted, 
of so defining and regulating the sale and 
use of propei'ty within their respective 
limits as to afford protection to the many 
against the injurious conduct of the few. " 
Now, the counsel of the state asks: "If 
the state may, by the exercise of its police 
power, determine for itself what tf\st shall 
be made of the safety illuminating oils, 
and prohibit the sale of all oils not sul)- 
jected to and sustaining such test, although 
such oils are manufactured by a process 
patented under the constitution and laws 
of the United States, why may it not de- 
termine f(n- itself what test shall be made 
of the wholesomeness and safety of food, 
and prohil)it the sale of all such food not 
submitted to and sustaining the test, al- 
though it may chance that articles other- 
wise subject to the constitution and laws 



POLICE POWER OE THE STATES. 



97 



of the United States cannot sustain the 
test?" The analogy, the learned counsel 
observes, seems close. But it is only seem- 
ingly close. There is no real analogy be- 
tween that case and the one before us. 
The Kentucky statute prescribed no test 
of inspection which, in view of the nature 
of the property, was either unusual or un- 
reasonable, or which by its necessary op- 
eration discriminated against any particu- 
lar oil because of the locality of its pro- 
duction. If it had prescribed a mode of 
inspection to which citizens of other states, 
liaving oils designed for illuminating pur- 
poses, and which they desired to sell in the 
Kentucky market, could not have reason- 
ably confoijued, it would undoubtedly 
ha v^e been held to be an unauthorized i)ur- 
den upon interstate commerce. Looking 
at the nature of the ])roperty to which 
the Kentucky statute had reference, there 
was no difficulty in the way of the pat- 
entee of the particular oil there in question 
submitting to the required local inspection. 

But a law providing for the inspection 
of animals whose meats are designed for 
human food cannot be regarded as a right- 
ful exertion of the police powers of the 
state, if the inspection prescribed is of such 
a character, or is burdened with such con- 
ditions, as will prevent altogether the in- 
troduction into the state of sound meats, 
the product of animals slaughtered in 
other states. It is one thing for a state to 
exclude from its limits cattle, sheep, or 
swine actually diseased, or meats that, by 
reason of their condition, or the condition 
of the animals from which they are taken, 
are unfit for human f(jod, and punish all 
sales of such animals or of such meats 
within its limits. It is quite a different 
thing for a state to declare, as does Minne- 
sota, by the necessary operation of its 
statute, thatfresh beef, veal, mutton, lamb, 
or pork — articles that are used in every 
part (jf this country to support human life 
— shall not be sold at all for human food 
within its limits unless the animal from 
which such meats are taken is inspected in 
that state, or, as is practically said, un- 
less the animal is slaughtered in that state. 

One other suggestion by the counsel for 
the state deserves to be examined. It is 
that, so far as this statute is concerned, 
the people of Minnesota can purchase in 
other states fresh beef, veal, mutton, lamb, 
and pork, and bring such meats into Min- 
nesota for their own personal use. We do 

SMITH, CONST. LAW — 7 



not perceive that this view strengthens 
the case of the state, for it ignores the 
right which the peopleof other states have 
in commerce between those states and the 
state of Minnesota, and it ignores the 
right of the people of Minnesota to bring 
into that sta,te, for purposes of sale, sound 
and healthy meat, wherever such meat 
may have come into existence. But there 
is a consideration arising out of the sug- 
gestion just alluded to which militates 
somewhat against the theory tliat the 
statute in questionis a legitimateexertion 
of the police powers of the state for the 
protection of the public health. If every 
hotel keeper, railroad, or mining coi'pora- 
tion, or contractor in Minnesota furnish- 
ing subsistence to large numbers of per- 
sons, and every private family in that 
state that is so disposed, can, wntliout 
violating the statute, bring into the state 
from other states, and use for their own 
purposes, fresh beef, veal, mutton, lamb, 
and pork taken from animn' ; slaughtered 
outside of Minnesota which may not have 
been inspected at all, or not within 24 
hours before being slaughtered, what be- 
comes of the argument, pressed with so 
much earnestness, that the health of the 
people of that state requires that they be 
protected against the use of meats from 
animals not inspectedin Minnesota within 
24 hours before being slaughtered? If the 
statute, while permitting the sale of meats 
from animals slaughtered, inspected, and 
"certitied" inthatstate, had expressly for- 
bidden the introduction from other states, 
and their sale in Minnesota, of all fresh 
meats, of every kind, without making any 
distinction between those that were fn^m 
animals inspected on the hoof, and those 
that were not so inspected, its unconstitu- 
tionality could not have been doubted. 
And yet it is so framed that this precise 
result is attained as to all sales in Minne- 
sota, for human food, of meats from ani- 
mals slaughtered in other states. 

In the opinion of tliis court, the statute 
in question, so far as its provisions re- 
quire, as a condition of sales in Minnesota, 
of fresh beef, veal, mutton, lamb, or pork, 
for human food, that the animals from 
which such meats are taken shall have 
been inspected in Minnesota before being 
slaughtered, is in violation of the constitu- 
tion of the United States, and void. 

The judgment discharging the appellee 
from custody is affirmed. 



98 



THE i'OLICE rOAVER. 



WILKERSON, Sheriff, v. RAHKER. 

(11 Sup. Ct. 8(55. 140 U. S. 54.-,.! 

Supreme Court of the Uuited States. May 2.j. 
1891. 

Appeal from tho circuit court of the 
TTiiited States for the district of Kansas. 

This was an application for a writ of 
luihens corpus made to the circuit court of 
the United States for the district of Kan- 
sas by Charles A. Rahrer, who alleged in 
his petition that he was illegally and 
wrongfully restrained of his liiierty by 
John M. VVilkerson, sheriff of Shawnee 
county, Kan., in violation of tlie consti- 
tution of the United States. The writ 
was issued, and, return having been made 
thereto, the cause was heard on the fol- 
lowing agreed statement of facts: "It is 
understood and agreed by and between the 
attorneys for the petitioner herein and the 
respondent that the above-entitled appli- 
cation to be discharged upon writ of lnj- 
bens corpus shall be heard and decided 
upon the following facts, namely: That 
H. C. Maynard and Lisle Hopkins are cit- 
izens and residents of the state of Mis- 
souri, and are partners doing business at 
Kansas City, in the state of Missouri, un- 
der the firm name of Maynard, Hopkins 
«5c Co.; that said Maynard, Hopkins & Co. 
are, and were at all the times herein men- 
tioned, doing a general wholesale business 
in Kansas Cit^', in the state of Missouri, 
in the sale of int(jxicating licpiors; that 
said Maynard, Hopkins &<'o. do a general 
business (jf packing and shipping intoxi- 
cating li()uors from their i)lace of i)usiness 
in Kansas City, iji the state of Missouri, 
to various points in the state of Kansas 
and other states; that in .June, ISDO, the 
said Maynard, Hoi)kins & Co. constituted 
and appointed the petitioner herein, 
Charles Rahrer. a citizen of the United 
States, their lawful agent in the city of 
Topeka, in the state of Kansas, to sell and 
dispose of for them in original i)ackages 
liquors shii^ped b^- the said Maynard, 
Hopkins & Co. from the state of Missouri 
to Topeka, in the state of Kansas; that 
in July. IsyO. the said Maynar<l, Hopkins 
& Co. shijtped to the city of Topeka, in the 
state of Kansas, from Kansas City, in the 
state of Missouri, a car-load of intoxicat- 
ing liquors i)acked by them aud ship|)ed 
•from Kansas City, in the state of Missouri, 
in original packages, which carload of 
intoxicating li(iuors so shipped was taken 
charge of b^' the i)etitioner herein, Charles 
Raiirer, at Topeka, in the state of Kan- 
sas, as the agent (jf Waynard, Hoi)kins & 
Co.; that on the Dth day of August, 1890, 
the said Charles Rahrer, as agent of the 
said Maynard, Hopkins & Co.. offered for 
sale and sold in the original package a 
portion of said licjuor, so shipped by the 
said Maynard, Hopkins & Co., to-wit, one 
pony keg of beer, being a fotir-gallon keg. 
which keg was in the same condition in 
which it was shipped from Kansas City, 
in the state of Missouri, to Topeka, in the 
state of Kansas; that said keg of beer 
was sej)arate and distinct from all other 
kegs of beer so shii)i)ed, and was shipped 
as a separate and distinct package by May 
nard, Hopkins & Co. from Kansas Citj', in 



the state of Missouri; that the petition- 
er, Charles A. Rahrer. on the 9th day of 
August, 1890. offered for sale, and sold, one 
pint of whisky, which was a portion of 
the li(iuor sliipped by Maynard. Hopkins 
& Co., as above stated; that said pint of 
whisky was sold in the same condition in 
which it was shipped from the state of 
Missouri and received in the state of Kan- 
sas; that it was separate and distinct 
from every other package of li(juor so 
shipi)ed, anfl was sold in tlie same pack- 
age in which it was received, being sectire- 
ly inclosed in a wooden .box of sutlicient 
size to hold said pint bottle of whisky. It 
is further agreed that Charles A. Rahrer, 
the petitioner herein, was not theownerof 
said liquor, but was simply acting as the 
agent of Maynard, Hopkins & Co., who 
were the owners of said liquor. That on 
the 21st day of August, 1890, there was 
tiled in the ofhce of the clerk of the district 
court of Shawnee count}', Kan., an infor- 
mation by R. B. Welch, county attorney 
of said county, together with affidavit of 
Otis M. Capron and John C. Butcher ap- 
pended and attached thereto, and in sup- 
port thereof, taken under paragraph 2.543, 
Gen. St. 1889, charging the said Charles A. 
Rahrer with violating the prohibitory liq- 
uor law of the state of Kansas by making 
the two sales hereinbefore mentioned. A 
copy of said information and affidavits 
so filed is attached to the return of the re- 
spondent herein and is hereby referred to 
and made a i)art hereo'i. That the i)eti- 
ti(Uier hei'ein. ('harles A. Rahrer, was ar- 
rested ui)on a warrant issued upon the in- 
formation and affidavit heretofore referred 
to, and is held in cust(jdy by the respond- 
ent, John M. Wilkerson, sheriff of Sliawnee 
count3-, by reason of said information so 
filed and said warrant so issued, and not 
otherwise. Said Charles A. Rahrer was 
not a druggist, and did not have, nor did 
his principals, Maynard, Hopkins &. Co., 
have, any druggist's permit at the time of 
making the said sales of int.ixicating liq- 
uor hereinbefore mentioned, nor had he or 
they ever made any application for a 
drucgist's permit to the probate judge of 
Shawnee county. Kan., before making 
such sales of intoxicating liquoi- as afoi-e- 
said. The said sales of intoxicating liq- 
uors were not made by said Charles A. 
Rahrer upon a printed or written affida- 
vit of the ai)plicant for stich intoxicating 
liquors, as re(iuired under the prohibitory 
laws of the state of K.ansas. A copy of 
the warrant under and by virtue of which 
the respondent, John M. Wilkerson, sheriff 
of Shawnee county, holds the said Charles 
A. Rahrer is attached to the return of the 
respondent, and is hereby referred to and 
made a part hereof. The recent act of 
congress relating to intoxicating li(iuors, 
and known as the 'Wilson Bill,' was 
signed by the president on August S, A. I). 
1890." The cii'cuit cotirt discharged the 
petitioner, and the case was brought to 
this couit by api)eal. The opinion will be 
found in 4o Fed. Rej>. r)5(). 

The constitution of Kansas provides: 
"The manufacture and sale of intoxicating 
liquors shall be forever prohibited in this 
state, except for medical, scientific, and 
mechanical purposes." 1 Gen. tst. Kan. 



POLICE POWEK OF THE STATES. 



99 



1889, p. 107. The sections of the Kansas 
•statutes claimed to have been violated 
by the petitioner are as follows: "Any 
I)erson or persons who shall manufacture, 
sell, or barter any spirituous, malt, vi- 
nous, fermented, or other intoxicating 
liquors shall be guilty of a misdemeanor, 
and punished as hereinafter provided: pro- 
vided, however, that such liquors may be 
sold for medical, scientific, and mechanical 
purposes, as provided in this act. It shall 
be unlawful for any person or persons to 
sell or barter for medical, scientific, or me- 
chanical purpos(ss any malt, vinous, spir- 
ituous, fermented, or other intoxicating 
liquors without first having procured a 
druggist's permit therefor from the pro- 
bate judge of the county wherein such 
druggist may be doing business at the 
time, "etc. " Any person without taking 
out and having a permit to sell intoxicat- 
ing liquors as provided in this act, or any 
person not lawfully and in good faith en- 
gaged in the business of a druggist, who 
shall directly or indirectly «ell or barter 
any spirituous, malt, vinous, fermented 
or other intoxicating liquors, shall be 
deemed guilty of a misdemeanor, and up- 
on conviction thereof shall be fined in any 
sum not less than one hundred dollars 
nor more than five hundred dollars, and 
be imprisoned in the county jail not less 
than thirty days nor more than ninety 
days." 1 Gen. St. Kan. c. 31, §§ 380, 3S1, 
386. On August 8, 1890, an act of congress 
was approved, entitled "An act to limit 
the effect of the regulations of commerct- 
between the several states and with 
foreign countries in certain cases," which 
reads as follows: "That all fermented, 
distilled, or other intoxicating liquoi-s or 
liquids transported into any state or ter- 
ritory, or remaining therein, for use, con- 
sumption, sale, or storage therein, shall 
upon arrival in such state or territory be 
subject to the operation and effect of the 
laws of such state or territory enacted in 
the exercise of its police powers, to the 
same extent and in the same manner as 
though such liquids or liquors had been 
produced in such state or territory, and 
shall not be exempt therefrom by reason 
of being introduced therein in original 
Ijackages or otherwise." 26 St. 313, c. 728. 
L. JJ. Kellog-g; A. L. WilJmws, R. B. 
Welch, and J. N. Ives, for appellant. 
Louis J. Blum, Edgar C Blum, and David 
Overmyer, for appellee. 

Mr. Chief Justice FULLER, after stating 
the facts as above, delivered the opinion 
of the court. 

The power of the state to impose re- 
straints and burdens upon persons and 
property in conservation and promotion 
of the public health, good order, and 
prosperity is a power originally and al- 
ways belonging to the states, not surren- 
dered by them to the general government, 
nor directly restrained by the constitu- 
tion of the United States, and essentially 
exclusive. And this court has uniformly 
recognized state legislation, legitimately 
for police purposes, as not, in the sense oi 
the constitution, nec^essarily infringing up 
<m any right which has been confided ex- 
pressly" or by implication to the national 



govei-nment. The fourteenth amendment, 
in forbidding a state to make or enforce 
any law abridging the privileges or im- 
munities of citizens of the United States, 
or to deprive any person of life, liberty, or 
property without due process of law, or to 
deny to any person within its jurisdiction 
the equal protection of the laws, did not 
invest, and d! 1 not attempt to invest, c(m- 
gress with power to legislate upon sub- 
jects which are within the domain of state 
legislation. As observed by Mr. Justice 
Bradley, delivering the opinion of the 
court in the Civil Rights Cases, 109 U. S. 3, 
13, 3 Sup. Ct. Rep. 18, the legislation under 
that amendment cannot "properly cover 
the whole domain of rights appertaining 
to life, liberty, and propert3% defining 
them, and providing for their vindication. 
That would be to establish a code of 
municipal law regulative of all private 
rights between man and man in society. 
It would be to make congress take the 
place of the state legislatureSj^ and to su- 
persede them. It is absurd to affirm that, 
because the rights of life, liberty, and 
property (\\hich include all civil rights 
that men have) are by the amendment 
sought to be protected against invasion 
on the part of the state without due pro- 
cess of law, congress may therefore pi'O- 
vide due process of law for their vindica- 
tion in every case; and that, because the 
denial by a state to any persons of the 
equal protection of the laws is prohibi-ted 
by the amendment, thereforecongress may 
establish laws for their equal protection." 
In short, it is not to be doubted that the 
power to make the ordinary regulations 
of police remains with the individual 
states, and cannot be assumed by the na- 
tional government, and that in this re- 
spect it is not interfered with by the four- 
teenth amendment. Barbier v Connolly, 
113 U.S. 27,31,5 Sup. Ct. Rep. 3.57. The 
power of congress to regulate commerce 
among the several states, when the sub- 
jects of that power are national in their 
nature, is also exclusive. The constitu- 
tion does not provide tiiat interstate com- 
merce shall be free, but, by the grant of 
this exclusive power to regulate it, it was 
left free except as congress might impose 
restraint. Therefore it has been deter- 
mined that the failure of congress to exer- 
cise this exclusive power in any case is an 
expression of its will that the subject shall 
be free from restrictions or impositions 
upon it bv the several states. Robbins v. 
Taxing Dist., 120 U. S. 489, 7 Sup. Ct Rep. 
592. And if a law passed by a state, in the 
exercise of its acknowledged powers, comes 
into conflict with that will, the congress 
and the state cannot occupy the position 
of equal opposing sovereignties, because 
the constitution declares its supremacy, 
and that of the laws passed in pursuance 
thereof. Gibbons v. Ogden, 9 Wheat. 210. 
That which is not supreme must yield to 
that which is supreme. Brown v. Mary- 
land, 12 Wheat. 448. 

"Commerce, undoubtedly, is traffic," 
said Chief Justice Makshall, "but it is 
something more; it is intercourse. It de- 
scribes the commercial intercourse be- 
tween nations and psrts of nations in all 
its branches, and is regulated by prescrib- 



100 



THE POLICE POWER. 



ing; rules for carrying on that intercourse. " 
Unquestionably, fermented, distilled, or 
other intoxicating liquors or liquids are 
subjects of coniniorcial intercourse, ex- 
change, barter, and traffic between nation 
and nation, and between state and state, 
like any othei- commodity in which a light 
of tratfic exists, and are so recognized 
by the usages of the commercial world, 
the laws of congress, and the decisions of 
courts. Nevertheless, it has been often 
held that state legislation which prohibits 
the manufacture of spirituous, inalt, vi- 
nous, fermented, or other intoxicating liq- 
uors within the limits of a state, to be 
there sold or bartered for general use as 
a beverage, does not necessarily infringe 
any right, privilege, or immunity secured 
by the constitution of the Onited States, 
or by the amendments thereto. Mugler 
V. Kansas, 123 U. S. (J2ii, S Sup. Ct. Kep. 
273, and cases cited. "These cases," in 
the language of the opinion in Mugler v. 
Kansas, (page 659, 123 17. S., page 296,8 
Sup. Ct. Rep.,) "rest upon the acknowl 
edged right of the states of the Union to 
control their purely internal affairs, and, 
in so doing, to protect the health, morals, 
and safety of their people by regulations 
that do not interfere with tlie execution 
of the powers of the general government, 
or violate rights secured by the constitu- 
tion of the United States. The power to 
establish such regulations, as was said in 
Gibbons v. Ogden, 9 Wheat. 1, 203, reaches 
everything within the territory of a state 
not surrendered to the national govern- 
ment." But it was not thought in that 
case that the record presented any ques- 
tion of the invalidity of state laws, be- 
cause repugnant to the power to regulate 
commerce among the states. It is upon 
the theory of such repugnancy that the 
case before lis arises, and involves the dis- 
tinctiun which exists between thecommer- 
cial power and the police power, which, 
"though quite distinguishable when they 
do not approach each other, may yet, 
like the intervening colors between white 
and black, approach so nearly as to per- 
plex tln^ understanding, as colors per])lex 
the vision in marking the distinction be- 
tween them." 12 Wheat. 441. And here 
the sagacious observations of Mr. Justice 
C'.\TiU)N, in the License Cases, 5 How. 599, 
may profitably be quoted, as they have 
often been before: "The law and the de- 
cision apply equally to foreign and to do- 
mestic spirits, as they must do on the 
principles assumed in support of the law. 
The assumption is that the police power 
was not touched by the constitution, but 
left to the states as the constitution found 
it. This is admitted; and whenever a 
thing, from character or condition, is of a 
description to be regulated by that pow- 
er in the state, then the regulation may be 
made l)y the state, and congress cannot 
interfere. But this must always depend 
on fact, subject to legal ascertainment, 
so that the injury may have redress. And 
the fact must find its support in this, 
whether the prohibited article belongs to, 
and is subject to be regulated as part of, 
foreign commerce, or of commerce among 
the states. If, from its nature, it does not 
belong to commerce, or of its condition. 



from putrescence or other cause, is such, 
when it is about to enter the state, that 
it no longer belongs to commerce, or, in 
other words, is not a commercial article, 
then the state povver may exclude its in- 
troduction; and, as an incident to this 
power, a state may use means to ascer- 
tain the fact. And here is th3 limit be- 
tween the sovereign power of the state 
and the federal power; that is to say, 
that which does not belong tocommerce is 
within the jurisdiction of the police power 
of the state, and that which does belong to 
commerce is within the jurisdiction of the 
United States. And to this limit must all 
the general views come, as 1 suppose, that 
were suggested in the reasoning of this 
court in the cases of Gibbons v. Ogden, 
Brown v. Maryland, and New York v. 
Miln, [11 Pet. I(i2.] What, then, is the as 
stimption of the state court? Undoubt- 
edly, in effect, that the state had the i)ovv- 
er to declare what should be an article of 
lawful commerce in the particular state; 
and, having declared that ardent sjjirits 
and wines were deleterious to morals and 
health, they ceased to be commercial com- 
modities there, and that then the police 
power attached, and consecjuently the 
powers of congress could not interfere. 
The exclusive state power is made to rest, 
not on the fact of the state or condition 
of the article, nor that it is property usu- 
ally passing by sale from hand to hand, 
but on the declaration found in the state 
laws, and asserted as the state policy, 
that it shall be excluded from commerce. 
And by this means the sovereign jurisdic- 
tion in the state is attempted to becreated 
in a case where it did not previously exist. 
If this be the true construction of the con- 
stitutional provision, then the paramount 
povver of congress to regulatecommerce is 
subject to a very material limitation, for 
it takes from congress, and leaves witJi 
the states, the power to determine the 
commodities or articles of projierty which 
are the subjects of lawful commerce. Con- 
gress may regulate, but the states deter- 
mine what shall or shall not be regulated. 
Upon this theory, the power to regulate 
commerce, instead of being paramount 
over the subject, would become su!»ordi- 
nate to the state p(»lice power; for it is 
obvious that the power to determine the 
articles which may be the subjects of com- 
merce, and thus to circumscrilje its scope 
and opeiation, is, in effect, the controlling- 
t)ne. The police power would not only be 
a formidable rival, but, in a struggle, 
must necessarily triumph over the com- 
mercial power, as the power to regulate is 
dependent upon the jjower to fix and de- 
termine upon the subjects to be regulated. 
The same i)rocess of legislation and rea- 
soning adopted by the state and its courts 
could bring within the police power any 
article of consumption that a state might 
wish to exclude, whether it belonged to 
that which was drank, or to food and 
clothing; and with nearly ecjual claims to 
propriety, as malt liquors and the produce 
of fruits other than grapes stand on no 
higher grounds than the light wines of 
this and other countries, excluded, in ef- 
fect, by the law as it now stands. And it 
would be only another step to regulate 



POLICE POWER OF THE STATES. 



101 



real or supposed extravagance in food 
and clothing. And in this connection it 
may be proper to say that the three 
states whose laws are now before us had 
in view an entire prohibition from use of 
spirits and wines of evei'y description, and 
that their main scope and object is to 
enforce exclusive temperance as a policy 
of state, under the belief tliat such a pol- 
icy will best subserve the interests of soci- 
ety, and that to this end, more than to 
any other, has the sovereign power of 
these states been exerted ; for it was ad- 
niitted, on the argument, that no licenses 
are issued, and tliat exclusion exists, so 
far as the laws can produce the result, — 
at least in s^ome of the states, — and that 
this was tiie policy of the law. For these 
reasons I think the case cannot depi n 1 on 
the reserved power in the state to regu- 
late its own police." And the learned 
judge reached the conclusion that tlie law 
of New Hampshire, which particularly 
raised the question, might be sust^ainea as 
a regulation of commerce, lawful, because 
not repugnant to any actual exercise of 
tlie commercial power by congress. In re- 
spect of this, the opposite view has since 
prevailed; but the argument retains its 
force in its bearing upon the purview of 
the police power as not concurrent with, 
and necessai'ily not superior to, the com- 
mercial power. The laws of Iowa under 
consideration in Bowman v. Railwav Co., 
125 U. S. 4G5, 8 Sup. Ct. Rep. 6S9, 1UG2, and 
Lelsy v. Hardin, 135 U. S. lOU, 10 Sup. Ct. 
Rep. 681, were enacted in the exercise of 
the police i)ower of the state, and not at 
all as regulations of commerce with for- 
eign nations and among the states; but 
as they inhibited the receipt of an import- 
ed commodity, or its disposition before it 
liad ceased to become an article of trade 
between one state and another, or anoth- 
er country' and this, they amounted in 
effect to a regulation of such commerce. 
Hence it was held that inasmuch as inter- 
sta,te commerce, consisting in the trans- 
portation, purcliase, sale, and exchange 
of commodities, is national in its charac- 
ter, and must be governed by a uniform 
system, so long as congress did not pass 
any law to regulate it specifically, or in 
such way as to allow the laws of the state 
to operate upon it, congress thereby in- 
dicated its will that such commerce should 
be free and untrammeled ; and therefore 
that the laws of Io\% a, referred to, were 
inoijerative in so far as they amounted 
to regulations of foreign or interstate 
commerce in inhibiting the reception of 
such articles within the state, or their sale 
upon arrival, in the form in which they 
were imported there from a foreign coun- 
try or another state. It followed as a 
cor(jllary that, when congress acted at 
all, the result of its action must be to op- 
erate as a restraint upon that perfect free- 
dom which its silence insured. Congress 
lias now spoken, and declared that im- 
ported liquors or liquids shall, upon arriv- 
al in a state, fall within the category of 
domestic articles of a similar nature. Is 
the law open to constitutional objection? 
By the first clause of section 10 of article 
1 of the constitution, certain powei-s are 
enumerated which the states are forbidden 



to exercise in any event; and by clauses 2 
and 3, certain others, which may be exer- 
cised with the consent of congress. As to 
those in the first class, congress cannot 
(•elieve from the positive restriction im- 
posed. As to those in the second, their 
exercise may be authorized; and they in- 
clude the collection of the revenue from 
imposts and duties on imports and ex- 
ports by state enactments, subject to the 
revision and control of congress; and a 
tonnage duty, to the exaction of which 
only tlie consent of congress is required. 
Beyond this, congress is not empowered 
to enable the state to go in this direction. 
Nor can congress transfer legislative pow- 
ers to a state, nor sanction a state law in 
violation of the constitution; and if it cai. 
adopt a state law as its own, it must be 
one that it would be competent for it to 
enact itself, and not a law passed in the 
exercise of the police power. Cooley v. 
Board, 12 How. 299; Gunn v. Barry, 15 
Wall. 610, 623; U. S. v. Dewitt, 9 Wall. 
41. It does not admit of argument that 
congress can neither delegate its own 
powers, nor enlarge those of a state. This 
being so, it is urged that the act of con- 
gress cannot be sustained as a regulation 
of commerce, because the constitution, in 
the matter of interstate commerce, oper- 
ates ex propria vigore as a restraint upon 
the power of congress to so regulate it as 
to bring any of its subjects v^'ithin the 
grasp of the police yjower of the state. In 
other words, it is earnestly contended 
that the constituticju guaranties freedom 
of commerce among the states in all 
things, and that not only may intoxicat- 
ing liquors be imported from one state into 
another without being subject to regula- 
tion under the laws of the latter, but that 
congress is powerless to obviate that re- 
sult. Thus the grant to the general gov- 
ernment of a power designed to prevent 
embarrassing restrictions upon Interstate 
commerce by any state would be made to 
forbid any restraint whatever. We do 
not concur in this view. In surrendering 
their own power over external commerce, 
the states did not secure absolute freedom 
in such commerce, but only the protection 
from encroachment afforded by confiding 
its regulation exclusively to congress. By 
the adoption of the constitution, the abil- 
ity of the several states to act upon the 
matter solely in accordance with their 
own will was extinguished, and the legis- 
lative will of the general government sub- 
stituted. No affirmative guarantj' was 
thereby given to any state of the right to 
demand, as between it and the others, 
what it could not have obtained before; 
while the object was undoubtedly sought 
to be attained of preventing commercial 
regulations partial in their character or 
contrary to the common interests. And the 
magnificent growth and prosperity of the 
country attest the success which has at- 
tended the accomi)lishment of that object. 
But this furnishes no support to the posi- 
tion that congress could not, in the exer- 
cise of the discretion reposed in it, con- 
cluding that the common interests did 
not require entire freedom in the traffic in 
ardent sf)irits, enact the law in question. 
In so doing, congress has not attempted 



102 



THE POLICE POWER. 



to delegate the power to regulate com- 
merce, or to exercise any power reserved 
to the stales, or to grant a power not 
possessed by the states, or to adopt state 
laws. It has taken its own codrse. and 
mfide its own regulation, apt)lying to 
these subjects of interstate commerce one 
common rule, whose uniformity is not 
affected by variations in state laws in 
dealing with such property. The principle 
upon which local option laws, so called, 
have been sustained, is that, while the 
legislature cannot delegate its power to 
make a law, it can make a law which 
leaves it to municipalities or the people to 
detei-mine some fact or state of things, up- 
on which the action of the law may de- 
pend. But we do not rest the validity of 
the act of congress on this analogy. The 
power over interstate commerce is too 
vital to the integrity of the nation to be 
qualified by any rehiiement of reasoning. 
The power to regulate is solely in the gen- 
eral government, and it is an essential 
part of tiiat regulation to prescribe the 
regular means for accomplishing the intr(j- 
duction and incorporation of articles into 
and with the mass of property in the 
country or state. 12 Wheat. 44S.' No rea- 
son is perceived why, if congress chooses 
to provide that certain designated sul)- 
jects of interstate commerce shall be gov- 
erned by a rule wiiieh divests them of that 
character at an earlier period of time than 
would otherwise be the case, it Is not 
within its competency to do so. The dif- 
ferences of opinion which have existed in 
tills tribunal in many leading cases upon 
this subject have arisen, not from a denial 
of the power of congress, when exercised, 
but upon the question whether the inac- 
tion of congress was in itself equivalent j 
to the affirmative intei'position of a bar \ 
to the operation of an undisputed power 
possessed by the states. We recall no de- 
cision giving color to the idea that, when 
congress acted, its action would be less 
potent than when it kept silent. The 
framers of the constitution never intended 
that the legislative power of the nation 
should find itself incapable of disposing of 
a subject-matter specitically committed to 
its chiirge. The manner of that disposi- 
tion brought into determination upon this 
record involves no ground for adjudging 
the act of congress inoperative and void. 
We inquire, then, whether fermented, 
distilled, or other intoxicating liqueurs or 
liquids transported into the state of Kan- 
sas, and there offered for sale and sold, 
after the passage of the act, l)ecanie sub- 
ject to the operation and effect of the ex- 
isting laws of that state in reference to 
such articles. It is said that this cannot 
be so, because, by the decision in Leisy v. 
Hardin, similar state laws were held un- 
constitutional in so far as they prohibited 
the sale of liquors by the importer in the 
condition in which they had been import- 
ed. In that case, certain beer imported 
into Iowa had been seized in the original 
packages or kegs, unbroken and unopened, 
in the hands of the importer, and the su- 
preme c<jurt of Iowa held this seizure to 
have been lawful under the statutes of the 
state. We reversed the judgment upon 
the ground that the legislation to the ex- 



tent indicated — that is to say, as construed 
to apply to importations into the state 
from without, and to permit the seizure 
of th*^ articles before they had by sale or 
other transmutation become a part of 
the common mass of property of the state 
— was repugnant to the third clause of 
section 8 of article 1 of the constitution of 
the United States, in that it could not be 
given that operati(ui without bringing it 
into collision with the implied exercise of 
a power exclusively confided to the gen- 
eral government. This was far from hold- 
ing that the statutes in question were ab- 
solutely void, in whole or in jjart, and as 
if they had never been enacted. On the 
contrary, the decision did not annul tha 
law, but limited its operation to property 
strictly' within thejurisdiction of the state. 
In Kailwa3' Co. v. Minnesota, 184 U. 8. 4ls, 
10 Sup. Ct. Rep. 4f)2, it was held that the 
act of the legislature of the state of Minne- 
sota of March 7, 1887, establishing a i-ail- 
road and warehouse commission, as con- 
strued by the su[)reme court of that state, 
by which construction we were bouml in 
considering the case, was in conflict with 
the con.stitution of the United States in 
the particulars complained of by the rail- 
road company; but. nevertheless, the case 
was remanded, with an instruction for 
further proceedings. And Mr. Justice 
Bi.ATCUFOUi), speaking for this court,, 
said : "In view of the opinion delivered by 
that court, it may be impossible for any 
further proceedings to be taken other 
than to dismiss the proceeding for a iiian- 
cIhihus, if the court should adhere to its 
opinion that, under the statute, it cannot 
investigate judicially the reasonableness 
of the rates fixed by the commission." In 
Tiernan v. Rinker, 102 U. S. ]2:J, an act of 
the legislature of the state of Texas levy- 
ing a tax upon the occupation of selling 
licjuors, malt and otherwise, but not of 
selling domestic wines or beer, was held 
inoperative so far as it discriminated 
against i\n ported wines or beer; but, a.s 
Tiernan was a seller of other litiuors as 
well as domestic, the tax against him was 
upheld. In the case at bar, petitioner was 
arrested by the state authorities for sell- 
ing im|)orted liquor on the yth of August, 
ISiJO, contrary to the laws of the state. 
The act of congress had gone into effect 
on the Sth of August, 1890, providing that 
imported liciuors should be subject to the 
operation and effect of the state laws to 
the same extent and in the same manner 
as though the litjuors had been produced 
in the state; and the law of Kansas for- 
bade the sale. Petitioner was thereby 
prevented from claiming the right to pro- 
ceed in defiance of the laws of the state, 
upon the implication arising from the 
want of action on the part of congress up 
to that time. The laws of the state had 
been passed in the exercise of its police 
powers, and ap|)lied to the sale of all in- 
toxicating liquors whether imported or 
not, there being no exception as to those 
imported, and no inference arising, in 
view of the provisions of the state c(r.;sti- 
tution and the terms of the law, (within 
whose mischief all intoxicating liquors 
came, ) that the state did not intend im- 
ported liquors to be included. We do not 



POLICE POWER OF THE STATES. 



108 



mean that the intention is to be injputed 
of violating; any constitutional rule, but 
that the state law should not be regarded 
as less comprehensive than its languagje 
is, upon the ground that action under it 
migl)t in particular instances be adjudged 
invalid from an external cause. Congress 
did not use terms of permission to the 
state to act, but simplj- removed an im- 
peiliment to the enforcement of the state 
laws in respect to imported packages in 
their original condition, created by the 
absence of a specific utterance on its part. 
It imparted no power to the state not 
then possessed, but allowed imported 
property to fall at once upon arrival with- 
in the local jurisdiction. 

It appears from the agreed statement of 
facts that this liquor arrived in Kansas 
prior to the passage of the act of con- 
gress, but no question is pi-esented here as 
to the right of the importer in reference to 
the withdrawal of the property from the 
state, nor can we perceive that the con- 
gressional enactment is given a retro- 
spective operation by holding it applicable 



to a transaction of sale occurring after it 
took effect. This is not the case of a law 
enacted in the unauthorized exercise of a 
power exclusively confided to congress, 
but of a law which it was competent for 
the state to pass, but which could not op- 
erate upon articles occu])3Mng a certain sit- 
uation until the passage of the act of con- 
gress. That act in terms removed the ob- 
stacle, and weperceiveno adequate ground 
for adjudging that a re-enactment of the 
state law was required before it could 
have the effect upon imported which it 
had alwaj's had upon domestic property. 
Jurisdiction attached, not in virtue of the 
law of congress, but because the effect of 
the latter was to place the property where 
jurisdiction could attach. The decree is 
revei-sed, and the cause remanded for fur- 
ther proceedings in conformity with this 
opinion. 

Hart.an, Gray, and Brewei!, .J.J., c(m- 
curred in the judgment of reversal, but 
not in all the reasfjning of the opinion of 
the court. 



104 



THE POLICE POWER. 



BT'DD V. PEOPLE OF STATE OF NEW 
YOKK. (No. 719.) PEOPLE OF STATE 
OF NEW YORK ex rel. ANNAN v. WALSH. 
Police Justice, et al. (No. 644.) PEOPLE 
OF STATE OF NEW YORK ex rel. PINTO 
T. SAME. (No. 645.) 1 

(12 Sup. Ct. 468, 14.3 U. S. 517.) 

Supreme Court of the United States. Feb. 29, 
1892. 

In error to tlie siiperioreoiirt of Buffalo, 
state of New Y(jrk. In error to the su- 
preme court of the state of New York. 
Affirmed. 

B. t. Tracy and W. N. Dykmni), for 
plaintiff in ei-ror in 644 and 64.5. C. F. 
Tabor. Atty. Gen., and J. A. Hyland, for 
defendants in error in 644 and 645. Bhiir 
Lee and Spencer Clinton, ior plaintiff in er- 
ror in 719. C. F. Tabor, Atty. Gen., and 
G. T. Quiinby,'iov defendant in errorin 719. 

Mr. Justice BLATCHFORD delivered the 
opinion of the court. 

On the 9th of June, 1S8S, the gov- 
ernor of the state of New York ap- 
proved an act, chapter 581 of the Laws 
of New York of 18SS, which iiad been 
passed l>y the two houses of the lep:isla- 
ture, three-ttfths being present, entitled 
"An act to regulate the fees and charges 
for elevating, trimming, receiving, weigh- 
ing, and discharging grain by means of 
floating and stationary elevators and 
warehouses in this state. " The act was 
iu these words: "Section 1. The ni.ax- 
imum charge for elevating, receiving, 
weighing, and discharging grain by means 
of floating and stationary elevators and 
warehouses in this state shall not exceed 
the following rates, namely : For elevat- 
ing, receiving, weighing, and discharging 
grain, five-eighths of one cent a bushel. 
In the process of handling grain by mearis 
of floating and stationary elevators, the 
lake vessels or propellers, the ocean vessels 
or steam-ships, and canal-boats, shall only 
be required to pay the actual cost of trim- 
ming or shoveling to the leg of the eleva- 
tor when unloading, and trimming cargo 
when loading. Sec. 2. Any person or per- 
sons violating the provisions c>f this act 
shall, upon conviction thereof, be ad- 
judged guilty of a misdemeanor, and be 
punished by a fine of not less than two 
hundred and fifty dollars, and costs there- 
of. Sec. 3. Any person injured by the vio- 
lation of the provisions of this act may 
sue for and recover any damages he may 
sustain against any person or persons 
violating said provisions. Sec. 4. Thisact 
shall not apply to any village, town, or 
city having less than one hundred and 
thirty thousand population. Sec. 5. This 
act shall take effect in)mediately. " 

(Jii the 26th of November, 18S8, an indict- 
ment, which bad been found by the grand 
jury of Frie county. New York, in the court 
of sessions of that county, against J. Tal- 
man Budd, for charging and receiving fees 
for elevating, re-eiving, weighing, and dis- 
charging grain into and from a stationary 

1 Dissenting opinion of I\Ir. Justice Brewer 
omitted. 



elevator and warehouse, contrary to the 
provisions of said statute, came on trial 
before a criminal term of the superior 
court of Buffalo, Erie county. 

The charge in the indictment was that 
Budd, at Buffalo, on the ]9th of Septem- 
ber, I8S8, being manager of the Wells ele- 
vator, which was an elevator and ware- 
house for receiving and discharging grain 
in the citj' of Buffalo, that city being a 
municipal corpora (:ion duly organized in 
pursuance of the laws of the state of New 
York and having a population of upwards 
of 130,000 people, did receive, elevate, and 
weigh from the propeller called the 
"Oceanica," the property of the Lehigh 
Valley Transportation Com[)any, a body 
corporate, 51,000 bushels of grain and 
corn, the property of said com))any, into 
the said Wells elevator, and unlawfully 
exacted from said company, for elevating, 
receiving, weighing, and discharging said 
grain and corn, the sum of «jne cent a 
bushel, and also exacted from said com- 
pany, for shoveling to the leg of the ele- 
vator, in the unloading of said 51,000 bush- 
els of grain and corn, .11.75 for every 1,000 
bushels thereof, over and above the actual 
cost of such shoveling. 

The facts set forth in the indictment 
were proved, and the defendant's counsel 
requested the court to instruct the jury to 
render a verdict of acquittal, on the 
ground that the prosecution was founded 
on a statute which was in conflict both 
with the constitution of the United States 
and with that of the state of New Y'ork ; 
that the services rendered by Budd, for 
which the statute assumed to fix a price, 
were not pul>lic in their nature; that nei- 
ther the persons rendering them, nor the 
elevator in question, had received any 
privilege from the legislature; and that 
such elevator was not a public warehouse, 
and received no license. The court de- 
clined to direct a verdict of acquittal, and 
the defendant excepted. 

The court charged the jury that it was 
claimed by the prosecution that the de- 
fendant had violated the statute in charg- 
ing more than five-eighths of one cent a 
bushel for elevating, receiving, weighina, 
and discharging the grain, and in charg- 
ing more than the actual cost of trimming 
or shoveling to the leg of the elevator, in 
unloading the propeller; that the statute 
was constitutional ; and that the jury 
should find the defendant guilty as charged 
in the indictment, if they believed the facts 
which had been adduced. The defendant 
excepted to that part of the charge which 
instructed the jury that they might find 
the defendant guilty of exacting an excess- 
ive rate for shoveling to the leg of the ele- 
vator, and also to that part which in- 
structed the jury that they might ccjnvict 
the defendant for having exacted an ex- 
cessive rate for elevating, receiving, weigh- 
ing, and discharging thegrain and corn. 

The jurj- brought in a verdict of guilty 
as charged in the indictment, and the 
court .sentenced the defeudant to pay a 
fine of .f250, and, in default thereof, to 
stand committed to the common jail of 
Erie county for a period not exceeding (^ne 
day for each dollar of said fine. The de- 
fendant appealed from that judgment to 



POLICE POWER OF THE STATES. 



105 



the general term of the superior court of 
Buffalo, which affirmed the judginent. 
He then appealed to the court of appeals 
of New York, which affirmed the judgment 
of tlie superior court of Buffalo; and tiie 
latter court afterwards entered a judg- 
ment making the judgment of the court of 
appealsits judgment. Thedefendant then 
sued out from this court a writ of error 
directed to the superior court of Buffalo. 

The oi)inion of tlie court of appeals is 
reported in 117 N. Y. 1, 22 N. E. Kep. 670. 
It was delivered by Judge Andrkws, with 
whom Chief Judge Kuger and Judges 
Eari., DA^^OKT^, and Finch concurred. 
Judges Peckham and Gkay dissented; 
Judge Gray giving a dissenting opinion, 
and Judge Pkckham adhei-ing to the dis- 
senting opinion which he gave in the case 
of People v. Walsh, 117 N. Y. 621, 22 N. E. 
Eep. 6S2. 

On the 22d of June, 188S, a complaint on 
oath was made before Andrew Walsh, 
police justice of the city of Brooklyn, N. 
Y., i;}iiit on the preceding day one Ed- 
ward Annan, a resident of that city, had 
violated the provisions of chapter 5S1 
of the Laws of New York of 1888, by 
exacting from the complainant more 
than five-eighths of one cent per bushel 
for elevating, weighing, receiving, and 
discharging a boat-load of grain from 
a canal-boat to an ocean steamer, and 
by exacting from the canal-boat and 
its owner more tiian the actual cost of 
trimming or shoveling to the leg of the 
elevator, and by charging against the 
ocean steamer more than the actwal cost 
of trimming the cargo; the services being 
rendered by a floating elevator of which 
Annan was part owner and one of the 
agents. On this com]jIaint, Annan was 
arrested and brought before the police jus- 
tice, wlio took testimony in the case, and 
committed Annan to the custody of the 
sheriff of the county of Kings to answer 
the charge before a court of special ses- 
sions in the city of Brooklyn. Thereu[)on 
writs of habeas corpus and certiorari 
were granted by the supreme court of the 
state of New York, on the application of 
Annan, returnable before the general 
term of that court in the first instance, 
but, on a hearing thereon, the writs were 
dismissed, and Annan was remanded to 
the custody of the sheriff. The opinion of 
the general term is reported in 2 N. Y. 
Supp. 27.5. Annan appealed to the court 
of appeals, which affirmed the order of the 
general term, (117 N, Y. 621. 22 N. E. Rep. 
682,) for the reasons set forth in the opin- 
ion in the Case of Budd, 117 N. Y. 1, 22 N. 
E. Rep.t'xO; and the judgment of the court 
of appeals was afterwards made the judg- 
ment of the supreme court. Annan sued 
out a writ of error from this court, di- 
rected to the supreme court of the state 
of New York. 

Like proceedings to the foregoing were 
had in the case of one Francis E. Pinto; 
the charge against him being that he had 
exacted from the complainant more than 
five-eighths of one cent per bushe! for re- 
ceiving and weighing a cargo of grain 
from a boat into the Pinto stores, of which 
he was lessee and n)anager, the same 
being a stationary grain elevator on 



land in the city of Brooklyn, N. Y , and 
had exacted more than tlie actual cost of 
trimming or shoveling to the leg of the 
elevator. Pinto sued out from this court 
a writ of error to the supreme court of 
the state of New York. 

The main question involved in these 
cases is whether this court will adhere to 
its decision in Munn v. Illinois, 94 U.S. 113. 

The court of appeals of New York, in 
People V. Budd, 117 N. Y. 1, 22 N. E. Kef). 
670, held that chapter .581 of the Laws of 
1888 did not violate the constitutional 
guaranty protecting private property, 
but was a legitimate exercise of the police 
power of the stateover a business affected 
with a public interest. In regard to the 
indictment against Budd, it held that the 
charge of exacting more than the statute 
rate for elevating was proved, and that 
as to the alleged overcharge for shoveling, 
it appeared that the carrier was com- 
pelled to pay $4 for each 1,000 bushels of 
grain, which was the charge of the shovel- 
ers' union, by which the work was per- 
formed, and that the union paid the ele- 
vator, for the use t)f the letter's steam- 
shovel, .fl.7.5 for each 1 ^'^>o bushels. The 
court held that t' error in sub- 

mitting to the ju' ion as to the 

overcharge for r hattheinten- 

ti(jn of the sta o confine the 

charge to the "at of the outside 

labor required; a violation of 

the act in thatpai is proved ; but 

that, as the verdi sentence were 

justified by proof c rcharge for ele- 

vating, even if tilt overcharge for 

shoveling was not mta out. the ruling of 
the superior court c* j^uffalo could not 
have prejudiced Budd. Of course, this 
court, in these cases, can consider only 
the federal questions involved. 

It is claimed, on behalf of Budd, that 
the statute of the state of New York is un- 
constitutional, because contrary to the 
provisions of section 1 of the fourteenth 
amendment to the constitution of the 
United States, in depriving the citizen of 
his property without due process of law; 
that it is unconstitutional in fixing the 
maximum charge for elevating, receiving, 
weighing, and discharging grain by means 
of floating and stationary elevators and 
warehouses at five-eighths of one cent a 
bushel, and in forbidding the citizen to 
make any profit upon the us3 of liis prop- 
erty or labor; and that the police power 
of the state extends only to property oi 
business which is devoted by its owner to 
the iDublic by a grant to the public of the 
right to demand its use. It is claimed on 
benalf of Annan and Pinto that floating 
and stationary elevators in the port ot 
New York are private property, not af- 
fected with any public interest, and not 
subject to the regulation of rates. 

"Trimming" in the canal-boat, spoken 
of in the statute, is shoveling the grain 
from one place to another, and is done by 
longshoremen with scoops or shovels; 
and "trimming" the ship's cargo when 
loading is stowMng it and .securing it for 
the voyage. Floating elevators are, pri- 
marily, boats. Some are scows, and have 
to be towed frtjm place to place by steam 
tugs; but the majority are propellers. 



106 



THE POLICE POWER. 



When the floating elevator arrives at the 
ship, and makes fast alouj^-side of her, the 
canal-boat carrying the grain is made fast 
on the otiier side of the elevator. A long 
wooden tube, called "the leg of the eleva- 
tor," andsi)oken of in the statute. Im jow- 
ere<l from the tower of the eievatorso that 
its hjvver end enters the hold of the canal- 
boat in the midst of the grain. The 
"spout" of the elevator is lowered into 
the ship's hcjld. The machinery of the 
elevator is then set in motion, the grain 
is elevated out of the canal-boat, received 
and weighed in the elevator, and dis- 
charged into the ship. The grain is lifted 
in " buckets" fastened to an endless belt, 
which moves up and down in the leg of 
the elevator. The lower end of the leg is 
buried in the grain so that the buckets are 
submerged in it. As the belt moves, each 
bucket goes up full of grain, and at the 
upper end of the leg, in the elevator tower, 
empties itscontents into the hopper which 
receives the grain The operation would 
cease unless the grain was trimtr.ed or 
shoveled to the leg as fast as it is carried 
up by the buckets. There is a gang of 
longshoremen who shovel the grain from 
ail parts of the hold of the canal-b(jat to 
"the leg of the elevator," so that tne 
buckets maybe alwayscovered with grain 
at the lower end of the leg. This "trim- 
ming or shoveling to the leg of the ele- 
vator, "when tlie canal-boat is unloading, 
is that i)art of the work which the ele- 
vator owner is required to do at the 
"actual cost. " 

In tije Budd and Pinto Cases the ele- 
vator was a stationary one, on land; 
and in the Annan Case it was a floating 
elevator. In tiie P>udd Case the court of 
appeals held that the words "actual 
cost," used in the statute, were intended 
to exclude any charge by the elevator be- 
yond the sum specified for the use of its 
machinery in shoveling, and the ordinary 
ex|)enses of operating it, and to confine 
the charge to the actual cost of the out- 
side labor required for ti'immiug and 
bringing the grain to the leg of the ele- 
vator; and that the purjjose of the stat- 
ute could be easily evaded and defeated if 
the elevator owner were permitted to sep- 
arate the services, and charge for the use 
of the steam-shovel any sum which might 
be agreed upon between him and the 
shovelers' union, and thereby-, under coIcm* 
of charging for the use of his steam- 
shovel, exact from the carrier a sum for 
elevating beyond the rate flxed therefor 
by the statute. 

The court of appeals, in its opinion in 
the Budd Case, cousidered fully the (jues- 
tion as to whether the legislature had 
power, under the ct)nstitution of the state 
of New York, to prescribe a maximum 
charge for elevating grain by stationary 
elevators, owned by individuals or cor- 
porations who had appropriated their 
property to that use, and were engaged 
in that business ; and it answered the in- 
quiry in the affirmative. It also reviewed 
the case of Munn v. Illinois, 94 11.8.118, 
and arrived at the conclusion that this 
court there held that the legislation in 
question in that case was a lawful exer- 
cise of legislative power, and did nut in- 



fringe that clause of the fourteenth amend- 
ment to the constitution of the Ilniied 
States which provides that no state shall 
"deprive any person of life, libertj', or 
property without due process of law:" 
and that the legislation in qnestion in 
that case was similar to. and not dis- 
tinguishable in principle from, the act of 
the state of New York. 

In regard to Munn v. Illinois the court 
of appeals said that the question in that 
case was raised by an individual owning 
an elevator and warehouse in Chicago, 
erected for, and in connection with which 
he had carried on, the business of elevat- 
ing and storing grain, many years prior 
to the passage of the act in question, and 
prior also to the adoption of thp amend- 
ment to the constitution of Illinois, in 
1S7U, declaring all elevators and ware- 
houses where grain or other j)roperty is 
stored for a compensation to be public 
warehouses. The court of apjteals then 
cited the cases of People v. Railroad Co., 
7(» N. Y. .5(i9; Bertholf v. O'Reillv. 74 N. Y. 
509; Buffalo, E. S. R. Co. v. Buffalo St. 
R. Co., Ill N. Y. 182, 19 N. E. Rep. «8; and 
People V. King, 110 N. Y. 418, IS N. E. Rep. 
24i^, — as cases in which Munn v. lllinuis 
had been referred to by it, and said that 
it could not overrule and disregard Munn 
V. Illinois without subverting the princi- 
ple of its own decision in People v. King, 
and certainly not without disregarding 
many of its deliberate *'xpressions in ap- 
proval of the principle of Munn v. Illinois. 

The court of a[)peals further examined 
the question whether the pcjwer of the 
legislature to regulate the charge for ele- 
vating grain, where the business was car- 
ried on by individuals ui)on their own 
premises, fell within the scope of the police 
power, and whether the statute in qties- 
tion was necessary for the public welfare. 
It affirmed that, while no general power 
resided in the legislature to regulate 
private business, pres(;ribe the conditions 
under which it should be conducted, fix 
the price of connuodities or services, or in- 
terfere with freedom of contrac^t, and 
whilethemerchant, manufacturer, artisan, 
and laborer, under our system of govern- 
ment, are left to pursue and provide for 
their own interests in their own way, un- 
trammeled by burdensome and restrictive 
regulaticuis, which, however common in 
rude and irregular times, are inconsistent 
with constitutional liberty, yet there 
might be special conditions and circum- 
stances which brought the business of 
elevjiting grain within principles which 
by the con.mon law and the practice < f 
tree governments, justined legislative con- 
trol and regulation in the particular case, 
so that the statute would be constitu- 
tional; that the control which, i)y com- 
mon law and by statute, was exerci.sed 
over common carriers, was conclusive 
upon the point that the right of the legis- 
lature to regulate the charges for services 
in connection with the use of property did 
not depend in every case upon the ques- 
tion whether there was a legal monojjoly, 
or whether special governmental iirivi- 
leges or protection had been bestowed; 
that there were elements of publicity in 
the business of elevating grain which pecul- 



POLICE POWER or THE STATES. 



107 



iarly affected it with a public interest; 
that those elements were found in the 
nature and extent of the business, its rela- 
tion to the commerce of tlie state and 
country, and the practical monopoly en- 
joyed by tiiuse engaged in it; that about 
120, 000, 000 bushels of grain come annually 
to Buffalo from the west; that the l)usi- 
ness of elevating grain at Buffalo is con- 
nected mainly with lake and canal trans- 
portation; tnat the grain received at New 
York in 18S7 by waj' of the Erie canal and 
Hudson liver, during the season of canal 
navigation, exceeded 40,000,000 bushels, — 
an amount vei-y largely in excess of the 
grain received during the same period by 
rail, and by river and coast-wise vessels; 
that the elevation of that grain from lake 
vessels to canal-boats takes place at 
Buffalo, where there are 30 or 40 elevators, 
stationary and floating; that a large pro- 
portion of the surplus cereals of the coun- 
try passes through the elevators at 
Buffalo, and finds its way through the 
Erie canal and Hudson river to the sea- 
b(jard at New York, whence it is distribut- 
ed to the markets of the woiid ; that the 
business of elevating grain is an incident 
to the business of transportation, the ele- 
vators being indispensable instrumentali- 
ties in the business of the common carrier, 
and in a broad sense performing the work 
of carriers, being located upon or adjacent 
to the waters of the state, and transfer- 
ring the cargoes of grain from the lake 
vessels to the canal-boats, or frum the ca- 
nal-boats to the ocean vessels, and there- 
by performing an essential service in 
transportation; that bj^ their means the 
transportation of grain by water from 
the upper lakes to the seaboard is ren- 
dered possible; that the business of ele- 
vating grain thus has a vital relation to 
commerce in one of its most important 
aspects; that every excessive charge made 
in the course of the transportation of 
grain is a tax upon commerce; that the 
public has a deep interest that no exorbi- 
tant charges shall beexacted at any point 
upon the business of transportation; and 
that whatever impaired the usefulness of 
the Erie canal as a highwa.y of commerce 
involved the public interest. 

The court of appeals said that, in view 
of the foregoing exceptional circumstances, 
the business of elevating grain was af- 
fected with a public interest, witiiin the 
language of Lord Cliief Justice Hale, in 
his treatise De Fortibns Maris, (Harg. 
Law Tracts, 7S;) that the case fell within 
the principle which permitted the legisla- 
ture to regulate the business of common 
carriers, ferrymen, and hack men, and 
interest on the use of money; that the 
underlying principle was that business of 
cei'tain kinds holds such a peculiar rela- 
tion to the public interest that there is 
superinduced upon it the right of public 
regulation; and that the court rested tl)e 
power of the legislature to control and 
regulate elevator cliarges upon the nature 
and extent of the })usiness, the existence of 
a virtual moncjpoly, the benefit derived 
from the Erie canal's creating the business 
and making it p(»ssible, the interest to 
trade and commerce, the relation of the 
business to the property and welfare of 



the state, and the practice of legislation in 
analogous cases, collectively creating an 
exceptional case and justifying legislative 
regulation. 

Tiie opinion further said that the crit- 
icism to which tlie case of Munn v. Illi- 
nois had been subjected proceeded mainly 
upon a limited and strict construction 
and definition of the police power; that 
there was little reason, under our system 
of government, for placing a close and 
narrow interpretation on the police 
power, or restricting its scope so as to 
hamper the legislative power in dealing 
with the varying necessities of society, 
and tlie new circumstances, as they 
arise, calling for legislative intervention 
in the public interest; and that no serious 
invasion of constitutional guaranty by 
the legislature could withstand for a long 
time the searching influence of pul)lic 
opinion, whicli was sure to come sooner 
or later to the side (jf law, order, and 
justice, however it might have been 
swayed for a time bj' passion or preju- 
dice, or whatever aberrations might have 
marked its course. 

We regard these views which we have 
referred to as announced by the court of 
appeals of New York, so far as they sup- 
port the validity of the statute in ques- 
tion, as sound and just. 

In Munn v. Illinois the constitution of 
Illinois, adopted in 1870, provided, in ar- 
ticle 13, section 1, as follows: "All eleva- 
tors or store-houses where grain or other 
property is stored for a compensation, 
whether the property stored be kept sepa- 
rated or not, are declared to be public 
warehouses;" and the act of the legisla- 
ture of Illinois approved April 25, 1S71, 
(Public Laws of Illinois of 1871-72, p. 762,) 
divided public warehouses into three 
classes, prescribed the taking of a license, 
and the giving of a bond, and fixed a max- 
imum charge for warehouses belonging 
to class A, for storing and handling 
grain, including the cost of receiving and 
delivering, and imposed a fine on convic- 
tion for not taking the license or not giv- 
ing the bond. Munn and Scott were in- 
dicted, convicted, and fined for not taking 
out the license, and not giving the l)ond. 
and for charging rates for ,storing and 
handling grain higher than those estab- 
lislied by the act. Section 6 of the act 
provided that it should be the duty of 
every warehouseman of class A to receive 
for storage any grain that might be ten- 
dered to him. Munn and Scott were the 
managers and lessees of a pulilic ware- 
house, such as was named in the statute. 
The supreme court of Illinois having af- 
firmed the judgment of couAiction aga'nst 
them, on the ground that the statute of 
Illinois was a valid and constitutional en- 
actment, (Munn V. People, 69 111. 80,) they 
sued out a writ of error from this court, 
and contended that the provisions of the 
sections of the statute of Illinois which 
they were charged with having violated 
were repugnant to the third clause of sec- 
tion 8 of article 1, and the sixth clause of 
section 9 of article 1, of tlie constituHon 
of the United States, and to the fifth and 
fourteenth amendments of that consti- 
tution. 



108 



THE POLICE POWER. 



This court, in Munn v. Illinois, the opin- 
ion being delivered by Chief Justice 
Waitr, iind there being a published dis- 
«3ent by only two justices, considered care- 
fully the question of the repugnancy of the 
Illinois statute to the fourteenth amend- 
ment. It said that, under the powers of 
government inherent in every sovereignty, 
" the government regulates the conduct of 
its citizens one towards another, and the 
manner in which each shall use his own 
property, when such regulation becomes 
necessary for the public good;" and that, 
"in their exercise it has been customary in 
England from time immemorial, and in 
this country from its first colonization, 
to regulate ferries, common carriers, liack- 
men, bakers, millers, wliartingers, inn keep- 
ers, etc., and in so doing to fix a max- 
imum of cliarge to be made for services 
rendered, accommodations furnished, 
and articles sold." It was added: "To 
this day, statutes are to be found in manj- 
of the states upon some or all these sub- 
jects; and we think it has never yet been 
successfully contended that such legisla- 
tion came within any of the constitu- 
tional ijrohibitions against interference 
with private property." It announced as 
its conclusions that, down to tlie time of 
the adoption of the fourteenth amend- 
ment, it was not supposed that statutes 
regulating the use, or even the price of 
the use, of private property necessarily de- 
prived an owner of his property without 
due process of law; that, when private 
property was devoted to a public use, it 
was subject to public regulation; that 
Munn and Scott, in conducting tJie busi- 
ness (jf their warehouse, pursued a public 
employment and exercised a 8f)rt of pub- 
lic office, in the same sense as did a com- 
mon carrier, miller, ferryman, inn-keeper, 
wharfinger, baker, cartman, or hackney 
coachman; that they stood in the very 
gateway of commerce, and took toll from 
all who passed ; that their business tended 
"to a common charge," and hati become a 
thing of public interest and use; that the 
toll on the grain was a common charge; 
and that, according to Lord Chief Justice 
Hale, every such warehouseman "ought 
to be under a public regulation, viz.," that 
he " take but reasonable toll. " 

Thi.^ court further held, in Munn v. Illi- 
nois, that the business in question was 
one in which the whole pultlic had a direct 
and positive interest : tliat the statute of 
Illinois simply extended the law so as to 
meet a new development of commercial 
progress; that there was no attempt to 
compel the owners of the warehouses to 
grant the public an interest in tiieir prop- 
erty, but to declare their obligations if 
they used it in that particular manner; 
that it mattered not that Munn and 
Scott had built their warehouses and 
established their business before the regu- 
lations complained of were adojjted ; that, 
the propert.y being clothed with a puijlic 
interest, what was a reasonable compen- 
sation for its use was not a judicial, but a 
legislative, (luestion; that, in countries 
w^ere the common law prevailed, it had 
been customary from time immemorial for 
the legislature to declare what should be 
a reasonable compensation under such cir- 



cumstances, or to fix a maximum, beyond 
which any charge made would be unrea- 
sonable; that tlie warehouses of Munn 
and Scott were situated in Illinois, and 
their business was carried on exclusivel.v 
in that state; that the warehouses were 
no more necessarily a part of commerce 
itself than the dray or the cart by which, 
but for them, grain would be tr? nsferred 
from one railroad station to another; 
that their regulation was a thing of do- 
mestic concern; that, until congress acted 
in reference to their interstate relations, 
the state might exercise all the powers of 
government over them, even though in so 
doing it might operate indirectl.y upon 
commerce outside its immediate jurisdic- 
tion ; and that the provision of section 9 
of article 1 of the constitution of the 
United States operated only as a limita- 
tion of the powers of congress, and did 
not affect the states in the regulation of 
their domestic affairs. The final conclu- 
sion of the court was that the act of Illi- 
nois was not repugnant to the constitu- 
tion of the United States, and the judg- 
ment was affirmed. 

In Sinking Fund Cases, 99 U. S. 700, 747, 
Mr. Justice Bradley, who was one of the 
justices who concurred in the opinion of 
the court in Munn v. Illinois, speaking of 
that case, said : "The inquiry there was 
as to the extent of the police power in 
cases whei-e the public interest is affected, 
and we held that when an employment or 
business becomes a matter of such public 
interest and importance as to create a 
common charge or burden upon the citi- 
zen, — in other words, when it becomes a 
practical monopoly, to which the citizen 
is compelled to resort, and by means of 
which a tribute can be exacted from the 
community, — it is subject to regulation by 
the legislative power." Although this 
was said in a dissenting opinion in Sink- 
ing Fund Cases, it shows what Mr. Justice 
Bkadlev regarded as the principle of the 
decision in Munn v. Illinois. 

In Water-Works v. Schottler, 110 U. S, 
347, 354, 4 Sup. Ct. Rep. 4S, this court said 
"that it is within the power of the gov- 
ernment to regulate the prices at which 
water shall be sold by one who enjoys a 
virtual monopoly of the sale, we do not 
doubt. That question is settled by what 
was decided oii full consideration in Munn 
V. Illinois, 94 U. S. 113. As was said in 
that case, such regulations do not deprive 
a person of his property without due pro- 
cess of law. " 

In Railroad Co. v. Illinois, IIS U. S. .557. 
569, 7 Sup. Ct. Rep. 4, Mr. Justice Miller, 
who had concarred in the judgment in 
Munn V. Illinois, referred, in delivering the 
opinion of the court, to that case, and 
said: "That case presented the question 
of a private citizen, or unincorporated 
partnership, engaged in the warehousing 
business in Chicago, free from any claim 
of right or contract under an act of in- 
corporation of any state whatever, and 
free from the question of continuous trans- 
portation through several states. And in 
that case the court was presented with 
the question, which it decided, whether 
any one engaged in a public business, in 
which all the public hacia right to require 



POLICE POWER OE THE STATES. 



109 



his service, could be regulatecl by acts of 
the legislature in the exercise of this public 
function and public duty, so far as to limit 
theamount of charges thatshould bemade 
for such services. " 

In Dow V. Beidelman, 125 U. S. 6S0, 686, 
8 Sup. Ct. Rep. 1028. it was said by Mr. 
Justice Gray, in delivering the opinion of 
the court, that in Munn v. Illinois the 
court, after aflirniing the doctrine that 
by the common law carriers or other per- 
sons exercising a public employment 
could not charge more than a reasonable 
compensHtion for their services, and that 
it is within the power of the legislature 
"to declare what siiall be a reasonable 
compensation for such services, or, per- 
haps more properly speaking, to fix a 
maximum beyond which any charge made 
would be unreasonable," said that to 
limit the rate of charges for services ren- 
dered in the public employment, or for the 
use of property in wliich the public has an 
interest, was only changing a regulation 
which existed before, and established no 
new principle in the law, but only gave a 
new effect to an old one. 

In Railroad Co. v. Minnesota, 1.34 U. S. 
418, 461, 10 Sup. Ct. Rep. 462, it was said 
by Mr. Justice Bh.\dley, in his dissenting 
opinion, in which Mr. Justice Gr.\y and 
Mr. Justice Lamak concurred, that the de- 
cision of the court in that case practically 
overruled Munn v. Illinois; but the opin- 
ion of the court did not say so, nor did it 
refer to Munn v. Illinois; and we are of 
opinion that the decision in the case in 
134 U. S., 10 Sup. Ct. Rep., is, as will be here- 
after shown, quite distinguishable from 
the present cases. 

It is tuus a[)parent that this court has 
adhered to the decision in Munn v. Illi- 
nois, and to the doctrines announced in 
the opinion of the court in that case; and 
those doctrines have since been repeatedly 
enforced in the decisions of the courts of 
the states. 

In Lake Shore, etc., Ry. v. Cincinnati, S. 
& C. Ry.,;W Ohio St. 604. 616, in 1877. it was 
said, citing Munn v. Illinois: "When the 
owner of property devotes it to a public 
use, he. in effect, grants to the public an 
interest in such use, and must, to the ex- 
tent of the use, submit to be controlled by 
the public, for the connijon good, as long 
as he maintains the use." That was a 
decision by the sunreme court commission 
of Ohio. 

In State v. Gas Co., 34 Ohio St. 572, 5S2, 
in 1S78, Munn v. Illinois was cited with 
approval, as holding that where the 
owner of property devotes it to a use in 
which the public have an interest, he in 
effect grants to the public an interest in 
such use, and must, to the extent of that 
interest, submit to be controlled by the 
public, for the common good, so long as 
lie maintains the use; and the court add- 
ed that in Munn v Illinois the principle 
was applied to warehousemen engaged 
in receivhig and storing gram; that it was 
held that their rates oi charges were sub- 
ject to legislative regulation; and that 
the principle applied with greater force to 
corporations when they were invested 
with franchises to be exercised to subserve 
the public interest. 



The supreme court of Illinois, in Rug- 
gles V. People, 91 111. 256, 262, in 1878, cited 
Munn V. People, 69 111. 80, which was 
affirmed in Munn v. Illinois, as holding 
that it was competent for the general as- 
sembly to fix the maximum chai-ges by in- 
dividuals keeping public warehouses for 
storing, handling, and shipping grain, and 
that, too, when such persons had derived 
no special privileges from the state, but 
were, as citizens of the state, exercising* 
the business of storing and handling grain 
for individuals. 

The supreme court of Alabama, in Davis 
v. State, 6S Ala. 58, in ISSO held that a 
statute declaring it unlawful, within cer- 
tain counties, to transport or move, after 
sunset and before sunrise of the succeeding* 
day, any cotton in theseed, but permitting 
the owner or purchaser to remove it from 
the field to a place of storage, was not un- 
constitutional. Against the argument that 
the statute was such a despotic interievence 
with the rights of private pr(jperty as to 
be tantamount, in its practical effect, to 
a deprivation of ownership "without due 
process of law," the court said that the 
statute sought only to regulate and con- 
trol the transportation of cotton in one 
particular condition of it, and was a mere 
police regulation, to which there was no 
constitutional objection; citing Munn v, 
Illinois. It added that the object of the 
statute was to regulate traffic in the sta- 
ple agricultural product of the state, so 
as to prevent a prevalent evil, whicli, in 
the o[)inion of the law-making power» 
might do much to demoralize agricultural 
labor, and to destroy the legitimate pro'- 
its of agricultural pursuits, to the public 
detriment, at least within the specified 
territory'. 

In Baker v. State, 54 Wis. 368, 373, 12 N. 
W. Rep. 12, in 18S2, Munn v. Illinois was 
cited with approval b3' the supreme courc 
of Wisconsin, as holding that the legisla- 
ture of Illinois had power to regulate pub- 
lic warehouses, and the warehousing and 
inspection of grain within that state, and 
to enforce its regulations by penalties, 
and that such legislation was not in con- 
flict with any provision of the federal con- 
stitution. 

The court of appeals of Kentucky, in 
18S2, in Nash v. Page, 80 Ky. 539, 545, cited 
Munn V. Illinois, as applicable to the case 
of the proprietors of tobacco warehouses 
in the city of Louisville, and held that the 
character of the business of the tobacco 
warehousemen was that of a public em- 
ployment, such as made them subject, in 
their charges and their mode of conduct- 
ing business, to legislative regulation and 
control, as having a practical monopoly 
of the sales of tobacco at auction. 

In 1884, the supreme court of I'ennsyl- 
vania, in Girard Storage Co. v. South- 
wark Co., 105 Pa. St. 248, 252, cited Munn 
V. Illinois as involving the rights of a pri- 
vate person, and said that the principle 
involved in the ruling of this court was 
that, where the owner of such property, 
as a warehouse, devoted it to a use in 
which the public had an interest, he in 
effect granted to the public an interest in 
such use, and must, therefore, to the ex- 
tent thereof, submit to be controlled by 



110 



THE POLICE POWER. 



the public for the cominon good, as long 
as he iimintained that use. 

In Sawj-er v. Davis, 186 Mass. 239, in 
1S,S4, the supreme judicial court of Massa- 
■chusetts said that nothing is better esiab- 
lislipd than thepower of the legislature to 
iriake what are called |)olice regulations, 
<ieclaring in what manner property shall 
be used and enjoyed and business carried 
on, with a vie\y to the good order and 
benefit of the* community, even though 
they may interfere to some extent with 
the full enjoyment of private property, 
and although no comi)ensation is given 
to a i)erson so inconvenienced; and Munn 
V. Illinois was cited as holding that the 
rules of the common law which had from 
time to time been established, declaring or 
limiting the ri^^ht to use or enjoy proper- 
ty, might themselves be changed, as occa- 
sion might require. 

The supreme court of Indiana, in ISS,^), 
in Hreclibill v. Kandall. 102 Ind. 52S, 1 N. 
E. Kep. 3('i2. held that a statute was valid 
which reiinired persons selliTig patent- 
rights to file with the clerk of the county 
a copy of the patent, with an affidavit of 
genuineness and authority to sell, on the 
ground that the state had power to make 
police regulations for the protection of its 
citizens against fraud and imposition; 
and the court cited Munn v. Illinois as 
authority. 

The supreme court of Nebraska, in 1SS5, 
in Webster Telephone Case, 17 Neb. 126, 22 
N. W. Ref). 237, held that when a corpora- 
tion or person assumed and undertook to 
supply a public demand, made necessary 
by the requirements of the commerceof the 
country, such as a public telephone, such 
demand must be supplied to all alike, 
without discriminatit)n ; and Munn v. Illi- 
nois was cited by the prevailing party 
and by the court. The defendant was a 
corporation, and had assumed to act in a 
capacity which vvas to a great extent 
public, and had undertaken to satisfy a 
])ublic want or necessity, although it did 
not possess any special privileges by star- 
ute or any monopoly of business in a given 
territory; yet it was held that, from the 
verj' nature and character of its business, 
it had a monopoly of the business which 
it transacted. The court said that no 
statute had been deemed necessary to aid 
the courts in holding that where a perso'i 
or company undertook to supply a public 
demand, which was "affected with a pub- 
lic interest." it must supply all alike who 
occupied a like situation, and not discrim- 
inate in favor of or against any. 

In Stone v. Railr(jad Co . 62 Miss. 607, 
630, the su[)reme court of Mississippi, in 
Ins.'), cited Munn v. Illinois as deciding 
that the regulation of warehouses for the 
stoiage of grain, owned b^' private indi- 
viduals, and situated in Illinois, was a 
thing of douiestic concern, and pertained 
to tlip state, and as affirming the right 
of the state to regulate the business of 
one engaged in a publicemployment there- 
in, although that business consisted in 
storing and transferring immense quanti- 
ties (jf grain in its transit from the fields 
of production to the markets of the 
world. 

In Hockett V. State, 105 Ind. 250, 258, 5 



N. E. Rep. 178, in 1SS5, the supreme court 
of Indiana held that a statute of the state 
which prescribed the maximum price which 
a telephone company should charge for 
the use of its telephones was constitu- 
tional, and that in legal contemplation all 
the instruments and appliances used by 
a teleplione company in the transaction of 
its business were devoted to a public use, 
and the property thus devoted became a 
legitimatesubject of legislative regulation. 
It cited Munn v. Illinois as a leading case 
in support of that proposition, and said 
that, although thatcase had been the sub- 
ject of comment and criticism, its author- 
ity as a precedent remained unshaken. 
This doctrine was confirmed in Telephone 
Co. V. Bradbury, 106 Ind. 1, 5 N.E. Rep. 721, 
in the same year, and in Telephone Co. v. 
State, 118 Ind. 194, 2<\7, 19 N. E. Rep. 604, 
in 1S88, in which latter case Munn v. Illi- 
nois was cited by the court. 

In Chesapeake & P. Tel. Co. v. Baltimore 
& O. Tel. Co., 66 Md. 399, 414, 7 Atl. Rep. 809, 
in 1886, it was held that the telegraph and 
the telephone were I'ublic vehicles of intelli- 
gence, and those who owned or controlled 
them could no more refuse to perform im- 
partially the functions which they had as- 
sumed to discharge than a railway com- 
pany, as a cfjmmon carrier, could right- 
fully refuse to perform its duty to the pub- 
lic; and that tne legislature of the state 
had full power to regulate the services of 
telephone companies, as to the parties to 
whom facilities should be furnished. The 
court cited Munn v. Illinois, and said that 
it could no longer be controverted that 
the legislature of a state had full power to 
regulate and control, at least within rea- 
sonable limits, public employments and 
property used in connection therewith; 
that the oi)eration of the telegraph and 
the teleplKJue in doing a general business 
was a public employment, and the instru- 
ments and appliances used were property 
devoted to a public use, and in which the 
public had an interest; and that, such be- 
ing the case, the owner of the i)roperty 
thus devoted to public use must submit to 
have that use and employment regulated 
by public authority for the common good. 

In the court of chancery of New Jersey, 
in 1889. in Delaware, etc., R. R. Co. v. Cen- 
tral St(jck-Yard Co., 45 N. .J. Eq. .50, 60, 17 
Atl. Rep. 140, it was held that the legisla- 
ture had power to declare what services 
warehousemen should render to the pub- 
lic, and to fix the compensation that 
might be demanded tor such services; and 
tile court cited Munn v. Illinois a.-< prop- 
erly holding that w arehouses for the stor- 
age of grain must be regarded as so far 
public in their nature as to be subject to 
legislative control, and th.at. when a citi- 
zen devoted his property to a use in which 
the public had an interest, he in effect 
granted to the public an interest in that 
use, and rendered himself subject to con- 
trol in that use by the body politic. 

In Zanesville v. Gas-Eight Co., 47 Ohio 
St. 1, 23 N. E. Rep. .55, in 18S'.). it was said 
by the supreme court of Ohio that the 
principle was well established that, where 
the owner of property devotes it to a use 
in which the public have an interest, he in 
effect grants to the public an interest in 



POLICE PO WE LI OF THE STATES. 



Ill 



such use, and must to the extent of that 
interest submit to be controlled by the 
public for the common good, as long' as he 
maintains the use, and that such was the 
point of the decision in Munn v. Illinois. 

We must regard the principle maintained 
in Munn v. Illinois as firmly established ; 
aijd we think it covers the present cases, 
in respect to the charge for elevating, re- 
ceiving, weighing, and discharging the 
grain, as well as in respect to the charge 
for trimming and shoveling to the leg of 
the elevator when loading, and trimming 
the cargo when loaded. If the shovelers 
or scoopers chose, they might do the 
shoveling by hand, or might use a steam- 
shovel. A steam-shovel is owned by the 
elevator owner, and the power for operat- 
ing it is furnished by the engine of the ele- 
vator; and if the scooper uses the steam- 
shovel, he pays the elevator owner for the 
use of it. 

The answer to the suggestion that by 
the statute the elevator owner is forbid- 
den to make any profit from the business 
of shoveling to the leg of the elevator is 
that made by the court of appeals of New 
York in the Case of Budd, that the words 
"actual cost," used in the statute, were 
intended to exclude any charge by the ele- 
vator owner beyond the sum specified for 
the use of his machinery in shoveling, and 
the ordinary expenses of operating it, and 
to confine the charge to the actual cost of 
the outside labor required for trimndng 
and bringing the grain to the leg of the 
elevator; and that the purpose of the 
statute could be easily evaded and defeat- 
ed if the elevator owner was permitted to 
separate the services, and to charge for 
the use of his steam-shovel any sum which 
might beagreed upon between himself and 
the shovelers' union, and thereby, under 
color of charging for the use of his steacn- 
shovel, to exact of the carrier a sum for 
elevating beyond the rate fixed by the 
statute. 

We are of opinion that the act of the 
legislature of New York is not contrary 
to the fourteenth amendment to the con- 
stitution of the United States, and does 
not deprive the citizen of his property 
without due process of law ; that the act, 
in fixing the maximum charges which it 
specifies, is not unconstitutional, nor is it 
so in limiting the charge for shoveling to 
the actual cost thereof; and that it is a 
proper exercise of the police power of the 
state. 

On the testimony in the cases before us, 
tlie business of elevating grain is a busi- 
ness charged with a public interest, and 
those who carry it on occupy a relation 
to the community analogous to that of 
common carriers. The elevator owner, in 
fact, retains the grain in his custody for 
an appreciable period of time, because he 
receives it into his custody, weighs it, and 
then discharges it, and his employment is 
thus analogous to that of a warehouse- 
man. In the actual state of the business 
the passage of the grain to the city of New 
York and other places on the seaboard 
would, without the use of elevators, be 
practically impossible. The elevator at 
Buffalo is a link in Ihechain of transporta- 
tion to the seaboard, and the elevator in 



the harbor of New York is a like link in 
the transportation abroad by sea. The 
charges made by the elevator influence the 
price of grain at the point of destination 
on the seaboard, and tliat influence ex- 
tends to the prices of grain at the places 
abroad to which it goes. The elevator is 
devoted by its owner, who engages in the 
business, to a use in which the public has 
an interest, and he must submit to be con- 
trolled by public legislation for the com- 
mon good. 

It is contended in the briefs for the plain- 
tiffs in error in the Annan and Pinto Cases 
that the business of the relators in hand- 
ling grain was wholly private, and not 
subject to regulation by law; and that 
they had received from the state no char- 
ter, no privileges, and no immunity, and 
stood before the law on a footing with 
the laborers they employed to shovel 
grain, and were no more subject to regu- 
lation than any other individual in the 
community. But these same facts existed 
in Munn v. Illinois. In that case, the par- 
ties offending were pi-ivate individuals, 
doing a private business, without any 
privilege or monopoly granted to them by 
the state. Not only is the business of ele- 
vating grain affected with a public inter- 
est, but the records show that it is an act- 
ual monopoly, besides being incident to 
the business of transportation and to that 
of a common carrier, and thus of a quasi 
public character. The act is also consti- 
tutional as an exercise of the police power 
of the state. 

So far as the statute in question is a reg- 
ulation of commerce, it is a regulation of 
commerce only on the waters of the state 
of New York. It operates only within the 
limits of that state, and is no more obnox- 
ious as a regulation of interstate com- 
merce than was the statute of Illinois in 
respect to warehouses, in Munn v. Illinois. 
It is of the same character with naviga- 
tion laws in respect to navigation within 
the state, and laws regulating wharfage 
rates within the state, and other kindred 
laws. 

It is further contended that, under the 
decision of this court in Railway ('o. v. 
Minnesota, 134 U. S. 418, 10 Sup. Ct. Kep. 
462, the fixing of elevator charges is a judi- 
cial question, as to whether they are rea- 
sonable or not; that thestatute must per-, 
mit and provide for a judicial settlement 
of the charges; and that, by the statute 
iinder consideration, an aruitrary rate is 
fixed, and all incjuiry is precluded as to 
whet'ier that rate is reasonable or not. 

lUit this is a misapprehension of the de- 
cision of this court in the case referred to. 
In that case the legislature of Minnesota 
had passed an act which established a 
railroad and warehouse commission, and 
the supreme court of that state had inter- 
preted the act as providing that the rates 
of charges for the transportation of prop- 
erty by railroads, recommended and pub- 
lished by the commission, should be final 
and conclusive as to what wer*> equal and 
reasonable charges, and that there could 
be no judicial inquiry as to the reason- 
ableness of such rates. A railroad com- 
pany, in answer to an application for a 
mandaiaus, contended that such rates in 



112 



THE POLICE POWER. 



reji;nrd to it were unreasonable, and, as 
it uas not allowed by the state court to 
put in testimony in support of its answer, 
on tlie question of the reasonableness of 
Buch rates, this court held that the stat- 
ute "as in conflict with the constitution 
of the United States, as depriving the 
coinpiiny of its pr<jperty without due pro- 
cess of law, and depriving it of the ecjuHl 
protection of the laws. That was a very 
different case from one under the statute 
of New York in (question here, for in this 
instance the rate of charges is fixed diiect- 
Iv by the legislature. See Si>encer v. Mer- 
chant, 12.3 li. S. 34.3,306,8 Sup, Ct. Rop. 921. 
What was said in the opinion of the court 
in 134 II. S., 10 Sup. Ct. Rep., had reference 
only to the ease then before the court, and 
to charges fixed by a commission appoint- 
ed under an act of the legislature, under a 
constitution of the state which provided 
that all corporations, being common car- 
riers, should be bound to carry "on equal 
and reasonable terms," and under a stat- 
ute which provided that all charges madft 
by a common carrier for the transptjrta- 
tion of passengers or property should be 
"equal and reasonable." 

What was said in the opinion in 134 U. 
S., 10 Sup. Ct. Rep., as to the question of 
the reasonableness of the rate of charge 
being one for judicial investigation, hail 
no reference to a case where the rates are 
prescribed directly by the legislature. Not 
only was that the casein the statute of 
Illinois in Munn v. Illinois, but the doc- 
trine was laid down by this court in Rail- 
way Co. V. Illinois, IIS U. S. .3.37. .3()8,7 Sup. 
Ct. Rep. 4, that it was the right of a state 
to establish limitations upon the power 
of railroad companies to fix the price at 
which they would carry passengers aud 
freight, aud that the question was of the 
same character as that involved in fixing 
the charges to be made by persons en- 
gaged in the warehousing business. So, 
too, in Dow V. Beidleman, 125 U. S. 680, 
686, 8 Sup. Ct. Rep. 1028, it was said that 
it was within the jiower of the legislature 
to declare what should be a reasonable 
compensation for the services of persons 
exercising a public employment, or to fix 
a maximum beyond which any charge 
made would be unreasonable. 

But in Dow v. Beidleman, after citing 
Munn V. Illinois, 04 U.S. 113; Railioad Co. 
V. Iowa, Id. 1.35, 161, 162: Feik v.Railwav. 
Id. 164. 178; Railroad v. Ackley, Id. 179; 
Railroad v. Blake, Id. 180; Stone v. Wis- 
consin, Id. 181; Ruggles v. Illinois, 108 U. 
S. 526, 2 Sup. Ct. Rep. 832; Railroad Co. v. 
Illinois, 108 U. S. 541, 2 Sup. Ct. Rep. 83!); 
Stone V. Trust Co., 116 U. S. 307, 6 Sup. Ct. 
Rep. 3.34, 3S8, 1191; Stone v. Illinois Cent. 
R. Co., 116 U. S. 347, 6 Sup. Ct. Rep. 34S, 
3SS, 1191, and Stone v. New Orleans & N. 
E. R. Co., 116 U. S. 352, 6 Sup. Ct. Rep. 349, 391 , 
— as recognizing the doctrine that the leg- 



islature may itself fix a maximum, beyond 
which any charge would be unreasonable, 
in respect to services rendered in a public 
employment, or for the use of property in 
which the public has an interest, subject 
to the proviso that such power of limita- 
tion or regulation is not without limit, 
aud is not a power to destroy, or a power 
to compel the doing of the services with- 
out I'eward, or to take private property 
for public use without just compensation 
or without due process of law, the court 
said that it had no means, "if it would 
under any circumstances have the power," 
of determining that the rate fixed by the 
legislature in that case was unreasonable, 
and that it did not appear that there had 
been any such confiscation of prf)p2rty as 
amounted to a taking of it without due 
process (jf law. or that there had been any 
denial of the equal pi'otection of the laws. 

In the cases before us, the records do 
not show that the charges fixed by the 
statute ai-e unreasonable, or that projier- 
ty has been taken without due process of 
law, or that there has been any denial of 
theeijual protection (jf the laws; even if 
under any circumstances we could deter- 
mine that the maximum rate fixed by the 
legislature was unreasonal)le. 

In Banking Co. v. Smith. 128 U. S. 174, 
179, 9 Sup. Ct. Rep. 47, in the opinion of 
the court, delivered by Mr. .lustice Fikld, 
it was said that this c{)urt had adjudged 
in numerous instances that the legislature 
of a state had the power U) prescribe the 
charges of a railroad comi)any for the 
carriage of persons and merchandise with- 
in its limits, in the absence of any con- 
tract to the contrary, subject to the 
limitation that the carriage is not re- 
quired without reward, or upon condi- 
tions amounting to the taking of prop- 
erty for public use without just compensa- 
tion, and that what is done does not 
amount to a regulation of foreign or in- 
terstate commerce. 

It is further contended for the plaintiffs 
in error that the statute in question vio- 
lates the fourteenth amendment, because 
it takes from the elevator owners the 
equal protection of the laws, in that 't 
applies only to places oMiich have 130,000 
population, or more, and does not apply 
to places which have less than 130,000 
population, and thus operates against 
elevator owners in the larger cities of the 
state. The law operates equally on all 
elevator owners in places having 130,000 
population, or more; and we do not per- 
ce've how they are depi-ived of the equal 
protection of the laws, within the mean- 
ing of the fourteen ch amendment. 

Judgments affirmed. 

Mr. Justice BREWER, Mr. Justice 
FIELD, and Mr. Justice BROWN dissent. 



POLICE POWER OF THE STATES. 



' 113 



CHICAGO, M. & ST.P.RY. CO.v. STATEOF 

MINNESOTA ex rel. RAILROAD & 

WAREHOUSE COMMISSiON.i 

(10 Sup. Ct. 462, 702, 134 U. S. 418.) 

Supreme Court of the United States. March 
24, 1890. 

,Tohv W. Gary and W. C. Goudy, for 
plaintiff in error. Moses E. Clapp, for de- 
fendant In error. 

BLATCHFORD, J. ThiHisa writ of error 
to review a judgment of the supreme court 
of the state of Minnesota, awarding a writ 
of niHTidamus against the Chicago, Mil- 
waukee & St. Paul Railway Company. 
The case arose on proceedings taken by 
the railroad and warehouse commission 
of the state of Minnesota, under an act of 
the legislature of that state approved 
March 7, 18S7, (Gen. Laws 1887, c. 10,) en- 
titled "An act to regulate common car- 
I'iers, and creating the railroad and ware- 
house commission of the state of Minne- 
sota, and defining the duties of such com- 
mission in relation to common carriers. " 
The act is set forth in full in the margin. 2 
The ninth section of that act creates a com- 
mission, to be known as the "Railroad and 
Warehouse Commission of the State of 
Minnesota, "to consist of three persons, to 
be appointed by the governor by and with 
tlie advice and consent of the senate. The 
first section of the act declares that its pro- 
visions shall apply to any common carrier 
"engaged in the transportation of passen- 
gers or property wholly by railroad, or 
partly by railroad and partly by water, 
when both are used under a common con- 
trol, management, or arrangement, for a 
carriage or shipment from one place or sta- 
tion to another, both being within the state 
of Minnesota." The second secxion declares 
"that all charges made by any common 
carrier subject to the provisions of this 
act, for any service rendered or to be ren- 
dered in the transportation of passengers 
or proi)erty as aforesaid, or in connection 
therewith, or for the receiving, delivering, 
stoi-age, or handling of such property, 
shall be equal and reasonable; and every 
unequal and unreasonable charge for such 
service is prohibited, and declared to be 
unlawful. " The eighth section provides 
that every common carrier subject to the 
provisions of the act shall print and keep 
for public inspection schedules of the 
charges which it. has established for the 
transportation of property; that it shall 
make no change therein except after 10 days' 
public notice, plainly stating the changes 
prt)posed to be made, and the time when 
they will go into effect; that it shall be 
unlawful for it to charge or receive any 
greater or less compensation than that so 
established and published for transporting 
property; that it shall file copies of it« 
schedules with the commission, and shall 
notify such commission of all changes pro- 
posed to be made; that, in case the com- 
mis.sion shall find at any time that any 
part of the tariffs of charges so filed and 



1 Reversing 37 N. W. Rep. 

2 See note at end of case. 

SMITH, CONST. LAW— 8 



782. 



published is in any respect unequal or un- 
reasonable, it shall have the power, and it 
is authorized and directed, to compel any 
common carrier to change the same, and 
adopt such charge as the commission " shall 
declare to be equal and reasonable, " tO' 
which end the commission shall, in writ- 
ing, inform such carrier in what respect 
such tariff of charges is unequal and un- 
reasonable, and shall recommend what 
tariff shall be substituted therefor; that, 
in case the carrier shall neglect for 10 days 
after such notice to adopt such tariff of 
charges as the commission recommends, 
it shall be the duty of the latter to imme- 
diately publish such tariff as it has de- 
clared to be equal and reasonable, and 
cause it to be posted at all the regular 
stations on the line of such carrier in Min- 
nesota, and it shall be unlawful thereafter 
for the carrier to charge a higher or lower 
rate than that so fixed and published by 
the commission; and that, if any carrier 
subject to the provisions of the act shall 
neglect to pul)lish or file its schedules of 
charges, or to carry out such recommenda- 
tion made and published by tbecom mission 
it shall be subject to a writ of mandHmiis 
"to be issued by any judge of the sujjreme 
court or of any of the district courts " of the 
state, on application of the commission, to 
compel compliance with the requirements of 
section 8, and with the reconimendation 
of the commission, and a failure to com- 
ply" with the requirements of the inandawvs 
shall be punishable as and for contempt, 
and the commlssionmay apply also to any 
such judge for an injunction against the car- 
rier from receiving or transporting proper- 
ty or passengers within the state, until it 
shall have complied with the requirements 
of section 8, and with the recommendation 
of the commission, and for any willful vio- 
lation or failure to comply with such re- 
quirements or such recommendation of 
the commission, the court may award 
such costs, including counsel fees, by way 
of penalty, on the return of said writs, and 
after due deliberation thereon, as ma^^ be 
just. 

On the 22d of June, 1887, the Boards of 
Trade Union of Farmington, Northfield, 
Faribault, and Owatonna, in Minnesota, 
filed with the commission a petition in 
writing, complaining that the Chicago, 
Milwaukee & St. Paul Railway Company, 
being a common carrier engaged in the 
transportation of property wholly by rail- 
road, for carriage or shipment from Owa- 
tonna, Faribault, Dundas, Northfield, and 
Farmington to the cities of St. Paul and 
Minneapolis, all of those places being with- 
in the state of Minnesota, made charges 
for its services in the transportation of 
milk from said Owatonna, Faribault, Dun- 
das, Northfield, and Farmington to St. 
Paul and Minneapolis which were unecjual 
and unreasonable, in thatitchargedl cents 
per gallon for the transportation of milk 
from Owatonna to St. Paul and Minne- 
apolis, and 3 cents per gallon from Fari- 
bault, Dundas, Northfield, and Farming- 
ton to the said cities ; and that such 
charges were unreasonably high, and sub- 
jected the traffic in milk between said 
points to unreasonal)le prejudice and dis- 
advantage. The prayer of the petition 



114 



THE P(JLICE POWER. 



was (hat such rates ho dpc-hircd nnrcasoii- 
abh\ and thecarrier hoconiixMlcd toclianj^e 
thosainc, and adopt sm-li rates and cliarges 
as the ocjinmissiou shouhl deehu-e to be 
equal and reasonable. A statement of the 
(•oni|)hiint thus made was forwarded by 
the eommission on the I'Dtli of June. ISST, 
to t he i-aihvay company ; and it was called 
ni)on by the commission, on the <ith of 
July, lss7, to satisfy the complaint, or an- 
swer it in writinj>-, at the office of the com- 
mission in St. Paul, on the 18th of Julv, 
1887. On the HOth of June, ]8S7. Mr. J. F. 
Tucker, the assistant general manager <)f 
the i-ailway company, addressed ji letter 
from Milwaukee to the secretary of the 
commission, saying: "I have your favor 
of tlie :i9th, with complaint as to millc 
rates l)eing unreasonable and une(inal. 
They may be une(]ual, if unreasonable. 
They are unreasonably low for the service 
])erfoi'med, — by passenger train, — and are 
25 ]»er cent, less than the sjrme commodity 
is cliai-g((l into New York, with longer dis- 
tances and hundred times larger volume in 
favor of New York. I am frank to say it 
is hard to ai)preciate com]»laints from 
boards of trade that 1-10 of a cent i)er gal- 
lon on milk handled on i)assenger train one 
mile is unreasonable. With what is the 
comi)arison made that enables such a con- 
clusion ? It's not tirst-class rates by freight 
train and was made low to encourage the 
trade, under the hope and promise that, 
when the trade were fostered, it would be 
advanced. This, as usual, has been forgot- 
ten."' On the i:Uli of July, 1887, at the 
office of the commission in St. Paul, the 
company ap])eared by J. A. Chandler, its 
didy-authoi'ized attorney, and the r>oards 
of Trade Union by its attorney, and the 
comriiission proceeded to investigate the 
coini)laint. An investigation of the i-ates 
charged by the con)pany for its services 
in ti-ansporting milk fioni Owatonna, 
Faribault, Dundas. Northfield, and P'arni- 
ington, to St. Paul and Minneai)olis, was 
made by the commission, and it found 
that the charges of the company for trans- 
porting milk from Owatonna and Fari- 
bault to St. Paul and Minneapolis was 3 
cents pergallon in lU-galloncans ; thatsuch 
charges were une(]ual and uni-easonable; 
and that the comp;iny's tariff of rates for 
trans])orting milk from (Jwatonna and 
Faribault to those cities, filed and pub- 
lished by it as provided by chapiter 10 of 
the Laws of 1SS7, was une(iual ami unrea- 
sonable; and thecominission declared that 
a rate of 2^^ cents per gallon in 10-gallon 
cans was an egual and reasonable rate 
for such services. On the 4th of August, 
1887, thecommission madea report in writ- 
ing which included thetindingsof fact up(m 
which its conclusions were based, its rec- 
ommendation as to the tariff which should 
be substituted for the tariff so found to be 
uneciual and unreason;ible, and also a 
specification of the rates and charges which 
it declared to be equal and reasonable. 
This paper was in the shape of a commu- 
nication dated at St. Paul, August 4, 1887. 
signed by the secretary of the commission, 
aiul addressed to the company. It said : 
"It appearing, from your schedule of rates 
and charges for the transportation of milk 
over and upon the Iowa and Alinnesota 



division of your road, that you charge, 
collect, and receive for the transjiortation 
of milk over and upon said line fiom Owa- 
tonna and Faribault to the cities of St. 
Paul and Minneapolis three cents pergal- 
lon, in ten-gallon cans, and from Dundas, 
Northheld, and Farmington to said cities of 
St. Paul and Minneav)olistwoand one-half 
cents i)er gallon, in cans of like cai)acity, 
and comijlaint having been made that such 
rates and charges are nne(]ual aiid unrea- 
sonable, and that the services performed 
by you in siich transportation are not rea- 
sonably worth the said sums charged 
therefor, and this commission having 
thei-eupon, ])ursuant to tli*- provisions of 
section (>iglit of an act entitled 'Ati act to 
regidfite common carriei's, and creating 
the railroad and warehouye comndssion of 
the state of Minnesota, and d(>tiuing the 
duties of such commission in relation to 
common carriers,' ap])roved M;irch 7, 1N«S7, 
exajuined the cause and ]'eas(uiabl(>ness of 
said complaint, and tinding, ])ursuant to 
subdivision o of said section, that yoursaid 
tai'iff of rates, so far as api)ei-tains to the 
transportation of milk to the cities of St. 
Paul and Minneai)olisfrom theotIu'ri)laces 
above named, and inasnuich as said tariff 
provides foi-, or re(iuires the chai-ging or 
collection of, a greater com])ensation than 
two and one-half cents per gallon, is un- 
reasonable and excessive: therefore said 
commission recommends and directs that 
you. the said Chicago. ^Milwaukee «& St. 
Paul Railway Company, shall alter and 
change your said s:*he(luleby the adoption 
and substitution of a rate not to exceed 
two and one-half cents per gallon for the 
services aforesaid from the citi(»s of Owa- 
tonna and Faribault, or either of them, to 
said St. Paul and .Minneai)olis. The com- 
n)ission,as at present ad vised. api)roves of 
the custom and arrangement which, it is 
informed, has been adoi)ted and is now in 
use by the Minnnesota c^ Northwestern R. 
R.Co., of collecting two and one-half cents 
pel' gallon on all milk trans|)oi-te<l by it, 
regardless of distance; but this expres- 
sion of (jpinionisnopart of theflecision, no- 
tice, or order in this case.'' Thisi-eport was 
entered of record, and a copy furnished to 
thePoards of Trade Union, and acopy wa.s 
also delivered, on the 4th of August, 1887, 
to the c(»m])any, with a notice to it to de- 
sist from chai'ging or receiving such un- 
equal and unreasonable rates for such serv- 
ices. The commission thus informed the 
company in writing in what respect such 
tariff of rates and charges was unequal 
and unreasonable, and recommended to 
it in writing what tariff should be substi- 
tuted therefor, to-wit, the tariff so found 
equal ;ind reasonable by the c<jmmission. 
The comi)any neglected and refiised, for 
ujorethan 10 daysaftersuch notice, to sub- 
stitute or adoi)t such tariff of charges as 
was recommended by thecommission. The 
latter thereupon published the tariff of 
charges which it had declared to be equal 
and reasonable, and caused it to be posted 
at the station of the company in Fari- 
bault on the 14th of October, 18S7, and at 
all the regular stations on the line of the 
company in Minnesota ])rioi* to November 
12, 1SS7, and in all things complied with 
the statute. The tariff so made, pub- 



rOLICE POWER OF i HE STATES. 



115 



lislied, and posted was dated October 13, 
1SS7, and was headed: "Chicago, Mil- 
waukee & St. Paul Railway C(jnipan.y. 
( Iowa and Minnesota Division.) Freight 
tariff on Milli from Owatonna and Fari- 
bault to St. Paul and Minneapolis, taking 
effect October 15, 1.SS7,"— and prescribed a 
cliarge of 2% cents per gallon in 10-gallon 
cans from either the Owatonna station or 
the Faribault station to either St. Paul 
or Minneapolis, to be the legal, equal, and 
reasonable maximum charge and compen- 
sation for such service, and declared that 
the same was in force and effect in lieu and 
place of the charges and comi)ensation 
theretofore demanded and received there- 
for by the com])any. 

On the (ith of December, 1SS7, the com- 
mission, by the attorney general of the 
state, made an application to the sui>reme 
court of the state for a writ of iiuni(hunus 
to compel the comi>any to comi)ly with 
the recommendation made to it by the 
commission, to change its tarilf of rates 
on milk from Owatonna and Faribault to 
St. Paul and Minneapolis, and to adopt the 
rates declared by the commission to be 
equal and reasonable. The application 
set forth the proceedings hereinbefore de- 
tailed; that the company had refused to 
carry out the recommendation so made, 
l)ublished, and posted by the commission; 
that it continued to charge 3 cents per gal- 
lon for the transportation of milk in 10- 
gallon cansfrom Owatonnaand Faribault 
1o St. Paul and Minneapolis; that said 
charge was unequal, unreasonable, and 
excessive; that 2% cents per gallon for the 
transportation by it of milk in lO-gallon 
cans from Owatonna and Faribault to St. 
Paul and Minneapolis was the maximum 
reasonable charge for the service; that 
any rate therefor in excess of 2% cents per 
gallon in 10-gallou cans was uneijual, ini- 
i-easonable, and excessive; that 3 cents per 
gallon in 10-gallon cans was a higher rate 
than was charged for the same distances 
on passenger trains by any expi-ess com- 
pany or by any other railroad company 
in Minnesota engaged in traus])orting milk 
to St. Paul or Minneapolis; that 2)^ cents 
per gallon in 10-gallon cans was the high- 
est rate charged for like distances on pas- 
senger trains by any such company; that 
the milk transported by the company to 
St. Paul aild Minneapolis, over its Iowa 
and ^linnesota division, (extending from 
("aluicir, in Iowa, to Ee Roy, in Minnesota, 
and from Le Roy, through Owatonna. and 
P'aribault, to St. Paul and Minneapolis,) 
large quantities of wTiich milk were 
shiijped from Faribault, Avas so transport- 
ed by the company on a passenger train 
which ran daily from Owatonna to St. 
Paul and Minneapolis; and that the com- 
pany, by means of such excessive charges, 
suljjected the traffic in milk at Faribaiilt 
and Owatonna to undue and unreasona- 
ble prejudice and disadvantage. Thereup- 
on an alternative writ of innndmuns was 
issued by the court, returnable before it on 
the 14th of December, 1887. On the 23d of 
December, 1887, the company tiled its i-eturn 
to the alternative writ in which it set up: 
(1 ) That it was not competent forthe leg- 
islature of Minnesota to delegate to a com- 
mission a power of lixing rates for trans- 



portation, and that the act of March 7, 
1887, so far as it attempted to confer upon 
the commission power to establish rates 
for the transportation of freight and pas- 
sengers, was void under the constitution 
of the state. (2) That the company as the 
owner of its railroad, franchises, equip- 
ment, and api)urtenances, and entitled to 
the possession and beneficial use thereof, 
was authorized to establish rates for the 
transi)ortation of freight and passengers, 
subject only to the provision that such 
rates should be fail- and reasonable; that 
the establishing of such rates by the state 
against the will of the company was j>ro 
tiiuto a takuig of its property, and depriv- 
ing it thereof, without due process of law, 
in violation of section 1 of article 14 of the 
amendments to the constitution of the 
United States; and that the making of the 
order of October 13, 1S87, was pvo tnnto 
a, taking and dei)riving the company of its 
property without due process of law. in 
violation of said section 1, and therefore 
void and of no effect. (3) That the rate of 
3 cents per gallon as a freight for carrying- 
milk in 10-galloii cans on passenger trains 
from Owatonna and Faribault, respective- 
ly, to St. Paul and Minneapolis, was a rea- 
sonable, fail', and ju.st rate; that the rate 
of 2'/^ cents per gallon, in 10-gallon cans, 
so fixed and established by tiie commis- 
sion, was not a reasonable, fair, or just 
compensation to thecompany forthe serv- 
ice rendered ; and that the establishing of 
such rate by the commission against the 
^^ ill of the company was pro tnnto a tak- 
ing of its property witlKmt due process of 
law, in violation of said section 1. The 
case'came on forbearing upon the alterna- 
tive writ, and the return, and the compa- 
ny applied for a reference to take testimo- 
nv on the issue raised by the allegati(jns 
in the api)lication for the writ and the re- 
turn thereto, as to whether the rate Hxed 
by the commission was reasonable, fair, 
and just. The court denied the applica- 
tion for a reference, and rendered judgment 
in favor of the relator, and that a peremp- 
tory writ of inHudamus issue. An applica- 
tion for a, reargument was made and de- 
nied The terms of the T)eremptory writ 
were directed to be that the company com- 
plv with the requirements of the recom- 
meudatiou and order made by the commis- 
sion on the 4th of August, 18S7, and change 
its tariff of rates and charges forthe trans- 
portation of milk from Owatonna and 
Faribault to St. Paul and Minneapolis, and 
substitute therefor the tariff recommend- 
ed published, and posted by the commis- 
sion, to-wit,the rate of 2J4 cents per gallon 
of milk in 10-gallon cans from Owatonna 
and Faribauitto St. Paul and Minneapolis, 
being the rates published by the commis- 
sionTttn^l declared to he equal and reason- 
able therefor, (^osts were also adjudged 
against th.ecompany. To review this jndg- 
nrent the company has brought a writ of 
error. 

The opinion of the supreme court is i-e- 
ported in 38 Minn. 281. 37 N. W. Rep. 782. 
In it the court, in the first place, construed 
the statute on the question as to whether 
the court itself had jurisdiction to entertain 
the proceeding, and held that it had. Of 
course, we cannot review this decision. 



116 



THE POLICE POWER. 



It next proceeded to consider the question 
as to tlie nature and extent of the i^owcrs 
granted to the commission by the statute in 
the matter of fixing the rates of cliarges. 
On that subject it said: "It seems to us 
that, if language means anything, it is 
perfectly evident that the expressed inten- 
tion of the legislature is that the rates rec- 
ommended and publislied by the comniis- 
sion. assuming that they have prf)ceeded 
in the manner pointed out by the act. 
should be not simply advisory, nor mere- 
ly prinin fnoie equal and reastmalde, but 
final and conclusive as to what are lawful 
or equal and reasonable charges; that, in 
proceedings to compel compliance with the 
rates thus published, the law neither con- 
templates nor allows any issue to be made 
or inquiry had as to their ecpiality and rea- 
sonal)leness in fact. Under the provisions 
of the act, the rates tlnis published are the 
only ones that are lawful, and therefore, 
in contemplation of law, the only ones 
that are equal and reasonal)le; and hence, 
in proceedings like the present, there is. as 
said before, no fact to traverse, except the 
violation of the law in refusing compliance 
"with the reconimendfitions of the corn mis- 
sion. Indeed, tlie language of the act is so 
plain on that point that argument can add 
nothing to its force. " It then proceeded 
to examine the qnesion of the validity of 
the act under the constitution of .Minne- 
sota, as to whetlier the legislature was au- 
thorized to confer upon the commission 
the powers given to the latter by the stat- 
ute. It held that, as the legislature had 
the power itwelf to regulate charges by 
railroads, it could delegate to a commlssi(jn 
the power of fixing such charges, and ccnild 
make the judgment or determination of 
thecommission as to wliat « ere reasonable 
charges final and conclusive. 

The Chicago, Milwaukee & St. Paul Rail- 
way Company is a corporation organized 
nnder the laws of Wisconsin. The line of 
railroad owned and operated by it in the 
present caseextendsfrom Calmar, in Iowa, 
to LeRoy,in Minnesota, and from LeRoy, 
througii Owatonna and Faribault, to St. 
Paul and Minneapolis; the line from Cal- 
mar to St. Paul and INIinneapolis being 
known as the "Iowa and Minnesota Divis- 
ion, " and being wholly in Minnesota fi'om 
the point where itcrosses the state line be- 
tween Iowa and Minnesota. It was con- 
structed nnder a charter granted by the 
territory of Minnesota to the Minneapolis 
& Cedar Valley Raib-oad Company, by an 
act approved March 1, 1856, (Laws 185(5, 
c. 16fi. p. 325,) to construct a railroad from 
the Iowa line, at or near the crossing (jf 
said line by the Cedar river, through the 
valley of Strait river to Minneapolis. Sec- 
tion 9 of that act provided that the direct- 
ors of the corpf)rati()n should have power 
to make all needful rules, regulations, and 
by-laws touching "the rates of toll, and 
the manner of collecting the same;" and 
section 13, that the comi)any should have 
power to unite its railroad with any other 
railroad which was then, or thereafter 
might be, constructed in the territory of 
Minnesota, or adjoining states or territo- 
ries, and should have power to consolidate 
its stock with any other company or com- 
panies. By an act passed March 3, 1857, 



c. on, (11 St. 195,) the congress of the United 
States made a grant of land to the tei-ri- 
tory of ^Minnesota, to aid in constructing 
certain railroads. By an act of the legis- 
lature of the territory approved May 22, 
18.57, (Laws 1857, Extra Sess. 20,) a portion 
of such grant was (conferred upon the Min- 
neapolis & Cedar Valley Railroad Comi)any. 
Subsequently, in i860, the state of Minne- 
sota, by proper proceedings, became the 
owner of the riglits, francliises, and prop- 
erty of that company. By an act ap- 
proved March 10, 1.SG2, c. 17, (Sp. Laws 
1862, p. 226,) the state incorporated the 
Minneapolis, Farib-ault & Cedar Valley 
Railroad Company, and conveyed to it all 
the franchises and property of the Minne- 
apolis & Cedar Valley Railroad Comi)any 
which the state had so acquired; and, by 
an act approved February 1, 1864, (Sp. 
Laws 1S64, p. 164,) the name of the Minne- 
apolis, Faribault & Cedar Valley Railroad 
Company was changed to that of the Min- 
nesota Central Railway Company. That 
couipany constructed the road from Min- 
neapolis and St. Paul to Le Roy, in Minne- 
sota; and the road from Le lioy to Cal- 
mar, in Iowa, and thence to McGregor, in 
the latter state, was consolidated with it. 
In August, 1867, the entire road from Mc- 
Gregor, by way of ('alinar, Le Roy, Austin, 
Owatonna, and Faribault, to St. Paul and 
Minneapolis, wag conveyed to theChicago, 
Milwaukee & St. Paul Railway Company, 
which succeeded to all the franchises so 
granted to the Minneapolis & Cedar Valley 
Railroad Company. 

It is contended for the railway company 
that the state of Minnesota is bound by 
the contract made by the territory in the 
charter granted to the Minneapolis & Cedar 
Valley Railroad Company ; that a contract 
existed that the company should have the 
power of regulating its rates of toll ; that 
any legislation by the state infringing up- 
on that right imi)airs the obligation of the 
contract; that there was no provision in 
the charter or in any general statute re- 
serving to the territory or to the state the 
right to alter or amend the charter; and 
that no subsequent legislation of the terri- 
tory or of the state could deprive the direct- 
oi's of the company of the power to fix its 
rates of toll, subject only to the general 
provision of law that such rates should be 
reasonable. But we are of opinion that 
the general language of the ninth section 
of the charter of the Minneapolis & Cedar 
Valley Railroad Company cannot be held 
to constitute an irrepealablecontract with 
that company that it should have the right 
for all future time to prescribe its rates of 
toll, free from all control by the legislature 
of the state. It was held by this court in 
Railroad Co. v. Miller, 132 U.S. 75, lOSup.Ct. 
34, in accordance with a long course of de- 
cisions both in the state courts and in this 
court, that a railroad corporation takes 
its charter, containing a kindred provision 
with that in question, subject to the gen- 
eral law of the state, and to such changes 
as may be made in such general law, and 
subject to future constitutional pi'ovisions 
and future general legislation, in the ab- 
sence of any ]irior contract with it exempt- 
ing it from liability to such future general 
legislation in respect of the subject-matter 



POLICE POWER OE THE STATES. 



117 



involved ; and that exemption from fnture 
e,-eneral legislation, either bj^ a constitu- 
tional provision or by an act of the legis- 
lature, cannot be admitted to exist unless 
it is given expressly, orunless it follows by 
an implication equally clear, with express 
words. There is nothing- in the mere grant 
of power, by section 9 of the charter, to the 
directors of the company, to make needful 
rules and regulations touching the rates of 
toll and the manner of collectingthe same, 
which can be properly interpreted as au- 
thorizing us to hold that the state parted 
with its general authority itself to regu- 
late, at any time in the future when it 
might see fit to do so, the rates of toll to 
oe collected bv the company. In Stone v. 
Trust Co.. 116 U. S. 807, 32.5, 6 Sup.Ct. Rep. 
3o4. 388,1191, the whole subject is fully con- 
sidered, the authorities are cited, and the 
conclusion is arrived at that the right of a 
state reasonably to limit the amount of 
charges by a railroad company for the 
transportation of persons and property 
within its jurisdiction cannot be granted 
away by its legislature unless bywords of 
positivegrant, or words equivalent in law ; 
and that a statute which grants to a rail- 
road company the right," from ti :ne to time, 
to fix, regulate, and receive the tolls and 
charges by them to be received for trans- 
portation," does not deprive the state of 
its power, wixhin the limits of its general 
authority, as controlled by the constitu- 
tion of the United States, to act upon the 
reasonableness of the tolls and charges so 
fixed and regulated. But, after reaching 
this conclusion, the court said, (116 U. S. 
331, 6 Sup. Ct. Rep. 345 :) " From what has 
thus been said, it is not to be inferred that 
this power of limitation or regulation is 
itself without limit. This power to regu- 
late is not a power to destroy, and limita- 
tion is not tlae equivalent of confiscation. 
Under pretense of regulating fares and 
freights, the state cannot recjuire a rail- 
road corporation to carry persons or prop- 
erty without reward; neither can it do 
that which in law amounts to a taking of 
private property for public use without 
just compensation, or without due process 
of law. " There being, therefore, no con- 
tract or chartered right in the railroad 
company which can prevent the legislature 
from regulating in some form the charges 
of the company for transportation, the 
question is whether the form adopted in 
the present case is valid. 

The construction put upon the statute 
by the supreme court of Minnesota must 
be accepted by this court, for the purposes 
of the present case, as conclusive, and not 
to be re-examined here as to its propriety 
or accuracy. The supreme court au tliori- 
tatively declares that it isthe expressed in- 
tention of the legislature of Minnesota, by 
the statute, that the rates recommended 
and published by the commission, if it pro- 
ceeds in the manner pointed out by the 
act, are not simply advisory, nor merely 
prima, facie equal and reasonable, but final 
and conclusive as to what are equal and 
reasonable charges; that the law neither 
contemplates nor allows any issue to be 
made or inquiry to be had as to their 
equality or reasonableness in fact; that, 
under the statute, the rates published by 



the commission are the only ones that 
are lawful, and therefore, in contempla- 
tion of law, the only ones that are equal 
and reasonable; and that, in a proceed- 
ing for a mandamjjs under the stat- 
ute, there is no fact to traverse except the 
violation of law in not complying with 
the recommendations of the commission. 
In other words, although the railroad 
company is forbidden to establish rates 
that are not equal and reasonable, there 
is no power in the courts to stay thehands 
of the commission, if it chooses to estab- 
lish rates that are unequal and unreason- 
able. This being the construction of the 
statute by which we are bound in consid- 
ering the present case, we are of opinion 
that, so construed, it conflicts with the 
constitution of United States in the par- 
ticulars complained of by the railroad 
company. It deprives the company of its 
right to a judicial investigation, by due 
process of law, under the forms and with 
the machinery provided by the wisdom of 
successive ages for the investigation judi- 
cially of the truth of a matter in contro- 
versy, and substitutes therefor, as an ab- 
solute finality, the action of a railroad 
commission which, in view of the powers 
conceded to it by the state court, cannot 
be regarded as clothed with judicial func- 
tions, or possessing the machinery of a 
court of justice. Under section 8 of the 
statute, which the supreme court of Min- 
nesota says is the only one which relates 
to the matter of the fixing hy the commis- 
sion of general schedules of rates, and 
wnicn section, it says, fully a'ad exclu- 
sively provides for that subject, and is 
complete in itself, all that the commission 
is required to do is, on the filing with it 
by a railroad company of copies of its 
schedules of charges, to "find" that any 
part thereof is in any respect unequal or 
unreasonable, and then it is authorized 
and directed to compel the company to 
change the same, and adopt such charge 
as the commission "shall declare to be 
equal and reasonable;" and to that end it 
is required to inform the company in writ- 
ing in what respect its charges are un- 
equal and unreasonable. No hearing is 
provided for; no summons or notice to 
the company before the commission has 
found what it is to find, and declared what 
it is to declare; no opportunity provided 
for the company to introduce witnesses be- 
fore the commission,— in fact, nothing 
which has the semblance of due process of 
law; and although, in the present case, it 
appears that, ijrior to the decision of the 
commission, the company aptieared before 
it by its agent, and the commission inves- 
tigated the rates charged by the company 
for transporting milk, yet it does not ap- 
pear Avhat the character of the investiga- 
tion was, or how the result was arrived 
at. By the second section of the statute 
in question, it is provided that all charges 
made by a common carrier for the trans- 
portation of passengers or property shall 
be equal and reasonable. Under this pro- 
vision, the carrier has a right to make 
equal and reasonable charges for such 
transportation. In the present case, the 
return alleged that the rate of charge fixed 
by the commission was not equal or re^ 



J18 



THE POLICK POWKi;. 



soiiable. and the supnMiie coui't liold that 
the statute deiirived tlie company of the 
i-ij;ht to show that jndicially. Tlie ques- 
tion of the reasonabh'iicss of a rate of 
eharj;e for transixirtatiou by a railroad 
eonii)any, involving;', as it does, the ele- 
ment of reasonableness both as res^'ards 
the company and as ivsards the publie, is 
eminently a (juestion for judicial investi- 
gation, requiring- due process of law for 
its determination. If the company is do- 
priv(>d of the power of charjiinj;- reason- 
able rates for the use of its property, and 
such deprivation takes place in the ab- 
sence of an in vestiji,ation by judicial ma- 
chinery, it is deprived of the lawful use of 
its property, and thus, in substance and 
effect, of the i)roperty itself, without due 
piocfss of law, and in violation of tlie con- 
stitution of the Fnited States; and, in so 
far as it is thus dcpi-ived, while other per- 
sons are i)ermitted to receive reasonable 
profits ui)on their invested cai)ital, the 
company is depT-i\ed of the ecpial protec- 
tion of thelaws. It is pi-ovided bysection 
4 of ai-ticle 10 of the constitution of Min- 
nesota of ISaT, that "lands may be taken 
for i)ul)lic way,forThe jinrpose of <;'i-antinff 
to any corporation the franchise of way 
for public use," and that "all corpora- 
tions, beins' common carriers, enjoying 
the riiiht of way in pursuance to the pro- 
visions of this section, shall be bound to 
carry the miner-il, a.ii,i'icultural, and other 
productions ami manufactures on equal 
and r(>;isonable terms." It is thus per- 
ceived that thu provision of section 2 of 
the Slat ute in (luestion is one enacted in 
conformity with the constitution of Min- 
nesota. 

The issuin.i;' of the i)eremi)tory writ of 
iij;ifi(I;iiiius in this cas(> was, therefore, un- 
lawful, because in violation of the consti- 
tution of the rnited States; and it is neces- 
sary that the relief adnnnistered in favor 
of the i)laintiff in error slutuld be a rever- 
sal of the jndj>inent of the suprt'me court 
award inj;- that writ, and an instruction 
for further proceedings by it not incon- 
sistent with the opinion of this coui-t. In 
view of the opini(jn deli v(>red by thatcourt, 
it may be impossible Un- ;\uy hirlher pro- 
c<>edin.n-s to be taken (jther tjian to dismiss 
the ])roceeding for a itinndnunis, if the 
court should adhere to its opinion that, 
vindei- the statute, it cannot investigate 
judicially the reasonableness of the rates 
Jixed by the comunssion. Still, the (pies- 
tion will be openfoi- review ; and the judg- 
ment of this court is that the judgment of 
the s\ii)reme court of Minnesota, entered 
^lay 4, ISNN. awai-ding a i)eremptory writ 
of ni;in(hinjus \u this case, be reversed, and 
the case be remanded to that court, with 
an insti'uction for further i)roceedings not 
inconsistent with the opinion of this conrt. 



BHADLEY, 
dissent. 



GRAY, and LAiMAK, .IJ., 



MILLER, J. 1 concur with some hesita- 
tion in the judgment of the court, but wish 
to make a few suggestions of the principles 
which I think should govern this class of 
(lU(>stions in the courts. Not desiring to 
make a dissent, nor a prolonged argu- 
ment in favor of any views 1 may have, I 



will state tliem in the form of ]»roposi- 
tlons. 

1. In regard to the business of common 
carriers limited to points within a singh; 
state, that state has the legislative i)ower 
to establish the rates of comjjensation for 
such carriage. 

2. The power which the legislature has 
to do this can beexercised through a com- 
mission winch it may authori>ie to act in 
the matter, such as the one ap])ointed by 
the legislature of Minnesota by the act now^ 
under consideration. 

3. Neither the legislature, nor such com- 
mission acting under the authority of the 
legislature, can establish arbitrarily, and 
without regard to justice and right, a 
taiift of r;jtes for such transportation 
which is so unreasonable as to practically 
destroy the value of property of persons 
engaged in the cari'ving business, on the 
one hand, ncjr so exoi-bitant and exti-ava- 
gant as to be in utter disregard of the 
rights of tlie i>ublic for the use of such 
transpoi-tation, on the other. 

4. In either of these classes of cases there 
is an ultimate remedy by the parties ag- 
grieved, in the courts, for relief against 
such oppressive l(>gislation, and esiiccially 
in the courts of the Tinted States, where 
the tariff of i-ates established either by the 
legislature or by thecomnnssion is such as 
to deprive a party of his i)roperty withoxrt 
due process of law. 

5. r>ut until th(> judiciar3' has been ap- 
pealed to, to <leclare the regidations mad(\ 
^yhether by the legisla tui'e or l)y the com- 
mission, voidable, for the reasons men- 
tioned, the tariff of rates so fixed is the law 
of the land, and must be submitted to 
both by the carrier, and the parties with 
whom he deals. 

(!. That the proper, if not theonly, nu)d(> 
of judicial relief against the tariff of rates 
established by the legislature, or by its 
commission, is by a bill in chancery assei-t- 
ing its unreasonable character, and its 
conflict with theconstitutiou of the I'nited 
States, and asking a decree of court for- 
bidding thecoi-poiation from exacting such 
fare as excessive, or establishing its right 
to collect the rates as being within the 
limits of ;i just compensation for the serv- 
ice rendered. 

7. That until this is done it is not com- 
petent for each individual having dealings 
with the carrying corporation, or for tiie 
cori)oration v\ ith regard to each individ- 
ual who (U'Uiands its services, to raise a 
contest in the courts o\er The (piestions 
which ought to be settl(>d in this g(>neral 
and conclusive method. 

•S. Rut in the present case, where an ap- 
plication is made to the supreme court of 
the state to comi)el the common carriers, 
namely, the railrcjad companies, to per- 
form the services which their duty recpiires 
them to do for the general public, which 
is e(iuivalent to establishing by judicial 
proceeding the reasonableness of the 
charges fixed by the commissiiui, I thiidv 
the coui-t has the same right atul duty to 
inciuire into the reasonableness of thetariff 
of rates established by the commission, be- 
fore granting such relief, that it would 
have if called ui)on so to do by a bill iu 
chancery. 



I^CSLICE PUWEli OF TIIK STATES. 



119 



9. I do not agree that it was necessary 
to the validity of the action of thecommis- 
}<ioiJ that previous notice should havebeen 
,i>-'ivcn to all coninion carriers interested in 
the rates to be established, nor to any par- 
ticular one of them, any more than it 
would have been necessary — which 1 iiiink 
it is not — for the legislature to have f>-iven 
such notice if it had established such rates 
by legislative enactment. 

10. But when the question becomes a ju- 
dicial one, and the validity and justice of 
these rates are to be established or rejected 
b.\ the judgment of a court, it is necessary 
that the railroad corporations interested 
in the fare to be considered shoiild have 
notice, and have a right to be heard on 
the question relating to such fare, which 
I have pointed out as judicial questions. 
For the refusal of the supreme court of 
Minnesota to receive evidence on this sub- 
ject, 1 think the case ought to be rever.^ed 
on the ground that this is a denial of due 
process of law in a proceeding which takes 
tlie pi"opert3^ of the compMuy ; and, if this 
be a just construction of the statute of 
]\]innesota, it is for that reason void. 

BRADLEY, J., (dissenting.) I cannot 
agree to the decision of tlie court in this 
case. It practically overrules Munn v. Illi- 
nois, 04 U. S. llo, and the several railroad 
cases that were decided at the same time. 
The .governing principle of those cases 
Avas tliat the regulation and settlement of 
the fares of railroads and other public ac- 
commodations is a legislative prerogative, 
and not a judicial one. This is a pi-inciple 
which 1 regard as of great impt)rtance. 
When a railroad company is chartered, it 
is for the purpose of performing a duty 
which belongs to the state itself. It is 
chartered as an agent of the state for fur- 
nishin.g public accommodation. The state 
might build its railroads, if it saw tit. It 
is its duty and its prerogative to provide 
means o* intercommunication between 
one part of its territory and another. And 
this duty is devolved upon the legislative 
department. If the legislature commis- 
sions i)i-is"ate parties, whether cori)ora- 
tions or individuals, to perform this duty, 
it is its prerogative to fix the fares and 
freig'its Avhich they may charge for their 
services. When merely a road or a canal 
is to be constructed, it is for the legisla- 
ture to fix the tolls to be paid by those who 
use it; when a compan.v is chartered, not 
only to build a road, but to carry on pub- 
lic transi)ortation upon it, it is for the leg- 
islature to fix the chnrges for such trans- 
l)ortation. 

But it is said that all charges should be 
reasonable, and that none but reasonable 
chai-ges can be exacted ; and it is urged 
that what is a reasonable charge is a ju- 
dicial (luestion. On the conti-ary, it is 
])re-eminently a legislative one, involving 
considerations of policy, as well as of re- 
muneration ; and is usually determined by 
the legislature, by fixing a maximum of 
charges in the charter of the conii)any, or 
afterwards, if its hands are not tied by 
contract. If this maxim\im is not exceed:* 
ed, the courts cannot interfere. When the 
rates are not thus determined, they are left 



to the discretion of the company, subject 
to the express or implied condition that 
they shall be reasonable — express, when 
so declared by statute; implied by the 
common law, when the statute is silent; 
and the common law has effect by virtue 
of the legislative will. Thus the legisla- 
ture either fixes the charges at rates which 
it deems reasonable, or merel.v declares 
that they shall be reasonable; and it is 
only in the latter case, where what is rea- 
sonable is left open, that the courts have 
jurisdiction of the subject. 1 rei)eat, 
when the legislature declares that the 
charges shall be reasonable, or, which is 
the s-ime thing, allows the common law 
rule to that eflVct to prevail, and leaves 
the matter there, then resort may be had 
to the courts to in(iuire judicially whether 
the charges are reasonable. Then, and 
not till then, is it a judicial question. But 
the legislature has the right, and it is its 
prerogative, if it chooses to exercise it, to 
decbtre what is reasonable. This is just 
where J differ from the majority of the 
court. They sa.y in effect, if not in terms, 
that the final tribunal of arbitrament is 
the judiciary. 1 say it is the legislature. 
1 hold thatitisalegislative question, not a 
judicial (jne, unless the legislature or the 
iaAV (which is the same thing) has made it 
judicial by pi-escribing the rule that the 
charges shall be reasonable, and leaving it 
there. 

It is always a delicate thing for the 
courts tomake an issue with thelegislati^'e 
department of the government, and they 
should never do so if it is ])ossible to avoid 
it. By the decision now made, we declare, 
in effect, that the judiciary, and not the 
legislature, is the final arbiter in the 
regulation of fares and freights of rail- 
roads, and the charges of other public ac- 
commodations. It is an assumption of 
authority on the part of the judiciary 
which, it seems to me, with all due defer- 
ence to the judgment of my brethren it has 
no right to make. The assertion of juris- 
diction by this court makes it the duty of 
every court of general juris<liction, state 
or federal, to entei'tain comjjlaints against 
the decisions of the b(jards of commission- 
ers appointed by the states to regulate 
their railroads; for all courts are bound 
b3' the constitution of the United States, 
the same as we are. Our jurisdiction is 
merely appellate. The incongruity of this 
position will appear more distinctly by a 
reference to the nature of the cases under 
consideration. The question presented 
before thecommission in each case was one 
relating simply to the reasonableness of 
the rates charged by the comi)anies, — a 
question of more or less. In the one case 
the company charged 3 cents per gallon for" 
carrying milk between certain points. 
The commission deemed this to be unrea- 
sonable, and reduced the charge to 2^^ 
cents. In the other case the compan.v 
charged .$1.2") per car for handling and 
switching empty cars over its lines within 
the citj' of Minneapolis, and $1.50 for load- 
ed cars; and the commission decided that 
$1 per car was a sufficient charge in all 
cases. The companies complain that the 
charges as fixed by the commission are 



J 20 



THE POLICE rOWER. 



unreasonably low. and that they are fle- 
pi'ived of their property without due pro- 
cess of hiw; tliat they are entitled to a 
trial by a ccjurt and jury, and are not 
barred bj" the decisions of a legislative 
commission. The state court held that 
the lejiislature had a ri^'ht to establish 
such aconimiKsion, and thatits determina- 
tions are binding and final, and that the 
courts cannot review them. This court 
now reverses that decision, and holds the 
contrary. In my judgment thestatecourt 
was right; and the establishment of the 
commission, and its proceedings, were no 
violation of the constitutional prohibition 
against depriving persons of their pi-oper- 
ty without due process of law. 

I think it is perfectl.v clear, and well set- 
tled by the decisions of this court, that the 
legislature might have fixed the rates in 
question. If it had done so, it would have 
done it throngh the aid of committees ap- 
pointed to investigate tlie subject, to ac- 
quire information, to cite parties, to get all 
the facts before them, and finally to decide 
and report. No one could have said that 
•this was not due process of law. And if 
the legislature itself could do tiiis, acting 
by its committees, and proceeding accord- 
ing to the usual forms adopted by such 
bodies, I can see no good reason why it 
might not delegate the duty to a board of 
commissioners, charged, as the board in 
this case was, to regulate and fix the 
charges so as to be equal and reasonable. 
Such a board would have at its command 
all the means of getting at the truth, and 
ascertaining the reasonableness of fares 
and freights, which a legislative commit- 
tee has. It might or it might not swear 
witnesses and examine parties. Its duties 
being of an administrative character, it 
would have the Avidest scope for examina- 
tion andinqiiiry. All means of knowledge 
and iuforuiation would beat its command ; 
just as they would be at the command of 
the legislature which created it. Such a 
body, though not a court, is a proper tri- 
bunal for the duties imposed upon it. In 
the case of Davidson v. City of New Or- 
leans, 96 U. S. 97, we decided that the ap- 
pointment of a board of assessors for as- 
sessing damages was not only dueprocess 
of law, but the proper metliod for making 
assessments to distribute the burden of a 
public work among those who were bene- 
fited by it. No one questions the consti- 
tutionality or propriet.v of boards for as- 
sessing property for taxation, or for the 
improvement of streets, sewers, and the 
like, or of commissions to establish county 
seats, and for doing many other things 
appertaining to the administrative man- 
agement of public affairs. Due process of 
lav^" does not always recpiire a court. It 
merely recjuiressuch tribunals and proceed- 
ings as are proper to the subject in hand. 
In the Railroad Commission Cases, 110 U. 
S. 307,0 8up. Ct. Rep. 334-350, 388, 391, 1191, 
Ave held that a board of commission- 
ers is a proper tribunal for determining 
the proper rates of fare and freight on the 
railroads of a state. It seems to me, there- 
fore, thatthelaAvof Minnesota did not pre- 
scribe anything that was not in accord- 
ance with due process of law in creating 



such a board, and iuA^esting it with the 
powers in question. 

It iscoiiiplained that the decisions of the 
board are final and Mithout appeal. So 
are the decisions of the courts in matters 
within their jurisdiction. Theremustbea 
final tribunal somewhere for deciding 
every qiiestion in the world. Injustice 
may take place in all tribunals. .\11 hu- 
man institutions are imperfect, — courts as 
well as commissions and legislatures. 
Whatever tribunal h;js jurisdiction, its de- 
cisions are final and ccjnclusive, unless an 
appeal is given therefrom. Theimportant 
question always is, what is the lawful 
tribunal for the particidar case? In my 
jutlgment, in the present case, the proper 
tribunal was the Ugislature, or the board 
of commissioners which it created for the 
purpose. 

If not in terms, yet in effect, the present 
cases are ti'eated as if the constitutional 
prohibition wr.sthatnostatesluill takepii- 
vate property for public use without just 
compensation, and as if it Avas our dut.y 
to judge of the compensation. But there 
is no such clause in the constitutiori of the 
United States. The fifth aniendnient is 
prohil)itory ui)on the federal goveiuiment 
only, and not ui)onthe stategovernments. 
In this mattef. — just compensation for 
property taken for pul)lic use. — the states 
make their OAvn regulations, by constitu- 
tion or otherAvise. They are only reriiiired 
by the fedei'al constitution to provide 
"due process of law." It was alleged in 
Davidson v. New Oi-leans that the jiroper- 
ty assessed was not benefited by the im- 
proA'ement; but we held that that was a 
matter with Avhich Ave Avould not niter- 
tere. The question was AAhether there 
was due process of laAV. 90 U. S. 100. If 
a state court renders an unjust judgment, 
we cannot remedy it. 

T do not mean to say that tiie legis- 
lature, or its constituted board of com- 
missioners, or other legislative agency, 
may not so act as to deprive parties of 
their property without due process of laAV. 
The constitution contemplates the possi- 
bility of such an invasion of rights. But, 
acting within their jurisdiction, (as in 
these cases they have done,) the invasion 
should be clear and unmistakable to bring 
the case within that category. Nothing 
of the kind exists in the cases before us. 
The legislature, in establishing the com- 
mission, did not exceed its power; and the 
commission, in acting upon the cases, did 
not exceed its jurisdiction, and AA'as not 
chargeable AA'ith fraudulent behavior. 
There was merely a difference of judgment 
as to amount between the comn)ission 
and the companies, without any indica- 
tion of int(>nt on the jjai't of the former to 
do injustice. The Ijoard may have erred ; 
but if they did, as the matter was AAdthiu 
their riglitful jurisdiction, their decision 
was final and conclusive, unless tlieir pvo- 
ceedings could be impeached for fraud. 
Deprivation of property by mere arbitrary 
power on the iiart of the legislature, or 
fraud on the part of the commission, are 
*the only grounds on which judicial relief 
may be sought against their action. 
There \A'as, in truth, no deprivation of 



POLICE POWER OF THE STATES. 



121 



property In tLiese cases at all. There was 
merely a regulation as to the enjoyment 
of property, made by a strictly competent 
authority, in a matter entirely within its 
jurisdiction. It may be that our h'j2:is- 
latures are invested with too much pow- 
er, open, as they are, to influences so dan- 
gerous to the interests of individuals, cor- 
porations, and society. Bnt such is the 
constitution of our republican form of 
government, and we are bound to abide 
by it till it can be corrected in a legitimate 
way. If our legislatures become too arbi- 
trary in the exercise of their powers, the 
people always have a remedy in their 
hands. They may at any time restrain 
them by constitutional limitations. But, 
so long as they remain invested with the 
powers that ordinarily belong to the leg- 
islative branch of government, they are en- 
titled to exercise those powers; among 
which, in my judgment, is that of the reg- 
ulation of railroads and other public means 
of intercommunication, and the burdens 
and charges which those who own them 
are authorized to impose upon the public. 
I am authorized to say that Mr. Jus- 
tice Gray and Mr. -Justice Lamar agree 
with me in this dissenting opinion. 

NOTE. 

Chapter 10. An act to regulate common carriers, 
and creating the railroad and warehouse com- 
mission of the state of Minnesota, and defining 
the duties of such commission in relation to 
common carriers. 

Be it enacted by the legislature of the state of 
Minnesota : 

Section 1. (a) That the provisions of this act 
shall apply to any common carrier or carriers en- 
gaged in the transportation of passengers or prop- 
erty wholly by railroad, or partly by railroad and 
partly by water, when both are used under a com- 
mon control, management, or arrangement, for a 
carriage or shipment from one place or station to 
another, both being within the state of Minnesota: 
provided, that nothing in this act shall apply to 
street railways or to the carriage, storage, or 
handling by any common carrier of property, free, 
or at reduced rates, for the United States, or for 
the state of Minnesota, or for any municipal gov- 
ernment or corporation within the state, or for any 
charitable purpose^ or to or from fairs and expo- 
sitions, for exhibition thereat, of stock for breed- 
ing purposes, or to the issuance of mileage, excur- 
sion, or commutation passenger tickets, at rates 
made equal to all, or to transportation to stock 
shippers with cars, and nothing in the provisions 
of this act shall be construed to prevent common 
carriers, subject to the provisions of this act, from 
issuing passes for the free transportation of pas- 
sengers, (h) The term "railroad"as used in this 
act shall include all bridges or ferries used or op- 
erated in connection with any railroad, and also 
all the road in use by any cox'poration operating a 
railroad, whether owned or operated under a con- 
tract, • agi'eement or lease ; and the term " trans- 
portation" shall include all instrumentalities of 
shipment or carriage. 

Sec. 2. (a) That all charges made by any com- 
mon carrier, subject to the provisions of this act, 
for any service rendered or to be rendered in 
the transportation of passengers or property as 
aforesaid, or in connection therewith, or for the 
receiving, delivering, storage, or handling of such 
property, shall be equal and reasonable; and ev- 
ery unequal and tmreasonable charge for such 
service is prohibited, and declared to be unlaw- 
ful : provided, that one car-load of freight of any 
kind or class shall be transported at as low a rate 
per ton, and per ton per mile, as any greater num- 
ber of car-loads of the same kind and class, fi'om 



and to the same points of origination or destina- 
tion, (b) It shall be unlawful for any common 
carrier subject to the provisions of this act to 
make or give any unequal or unreasonable prefer- 
ence or advantage to any particular person, com- 
pany, fu'm_, corporation, or locality, or any partic- 
ular description of traffic, in any respect whatso- 
ever, or to subject any particular person, compa- 
ny, fii-m, corporation, or locality, or any particular 
description of traffic, to any unequal or unreason- 
able prejudice or disadvantage in any respect 
whatsoever. 

Sec*. 3. (a) That all common carriers subject to- 
the provisions of this act shall, according to 
their respective powers, provide, at the point of 
connection, crossing or intersection, ample facil- 
ities for transferring cars, and for accommodating 
and transferring passengers, and traffic of all kinds 
and classes, from their lines or tracks to those 
of any other common carrier whose lines or tracks, 
may connect with, cross, or intersect their own, 
and shall afford all equal and reasonable facilities- 
for the interchange of cars and tx-affic between 
their respective lines, and for the receiving, for- 
wai-ding, and delivering of passengers and prop- 
erty and cars to and from their several lines and' 
those of other common car'riers connecting there- 
with, and shall not discriminate in their rates and 
charges between such connecting lines, or on 
freight coming over such lines ; but this shall not 
be coiistrued as requiring any common carrier to 
use for another common carrier its tracks, equip- 
ments, or terminal facilities without reasonable 
compensation, (h) That it shall be unlawful for- 
any common carrier subject to the provisions of 
this act to enter into any combination, contract, 
or agreement, expressed or implied, to prevent, ■ 
by change of time or schedule, or by carriage in- 
different cars, or by any other means or devices, 
the carriage or freight from being continuous, 
from the place of shipment to the place of destina- 
tion; and no bi'eak of bulk, stoppage, or inteiTup- 
tion made by such common carrier shall prevent 
the carriage of freight from being treated as one 
continuous carriage from the place of shipment to 
the place of destination, unless such break, stop- 
page, or interruption was made in good faith, for- 
some necessary purpose, and without any intent 
to avoid or unnecessarily interrupt such continu- 
ous carriage, or to evade any of the provisions of 
this act. (c) Every common carrier operating a 
railway in this state shall, without unreasonable 
delay, furnish, start, and run cars for the trans- 
portation of persons and property which, within a. 
reasonable time theretofore, is offered for transpor- 
tation at any of its stations on its line of road, and 
at the junctions of other railroads, and at such 
stopping places as may be established for receiv- 
ing and" discharging passengers and freights, and 
shall take, receive, transport, and discharge such 
passengers and property at, from, and to such sta- 
tions, junctions, and places, on and from all trains 
advertised to stop at the same for passengers and 
freights, respectively, upon the due payment, or- 
tender of payment, of tolls, freight, or fare there- 
for, if such payment is demanded. Every such 
common carrier shall permit connections to be 
made and maintained in a reasonable manner with 
its side tracks to and from any warehouse, eleva- 
tor, or manufactory, without reference to its size 
or capacit3^: provided, that this shall not be con- 
strued so as to require any common carrier to con- 
struct or furnish any side track off from its own 
land: provided further, that, where stations are- 
ten (10) miles or more apart, the common carrier, 
wheii required to do so by the railroad and ware- 
house commissioners, shall construct and maintain 
a side track for the use of shippers between such 
stations. (cZ) Whenever any property is received 
by any common carrier, subject to the provisions. 
of this act, to be transported from one place to an- 
other within this state, it shall be unlawful for- 
such common carrier to limit in any way, except 
as stated in its classification schedule hereinafter 
provided for, its common-law liability with ref- 
erence to such property while in its custody as a 
common carrier, as hereinbefore mentioned. Such^ 
liability must include the absolute responsibility 



THE roLK'E roWEK. 



of the common carrier for the acts of its ajients 
in relation to such property. 

Sec. 4. That it shall be unlawful for any com- 
mon carrier subject to the provisions of this act to 
enter into any contract, agreement, or combination 
with any other common carrier or cai-riei's for the 
division or pooliu).? of business of different and 
comi)otinK railroads, or to divide between them 
the atiKi'eaate or net proceeds of the earnings of 
sucli railroads, or any portion thereof; and, in 
case of an agreement for the pooling of their busi- 
ness aforesaid, each day of its continuance shall 
be deemed a separate otfense. • 

Sec. 5. That, if any common carrier subjec-t to 
the provisions of this act shall, directly or in- 
direc-tly. by any special rate, rebate, di'awback, or 
other device, charge, demand, collect, or receive 
from any person or persons a greater or less com- 
pensation for any service rendered, or to be ren- 
dered, in the transportation of passengers or jjrop- 
erty subject to the provisions of this act than it 
chai'ges. demands, collects, or receives from any 
other jjerson or persons for doing fur hiin or theiii 
a like and i-onteniporaneous service in the trans- 
portation of passengers or property, such common 
carrier shall be deemed guilty of unjust discrim- 
ination, which is hereby prohibited, and declared 
to be unlawful. 

Sec. 0. That it .shall be unlawful for an.v com- 
mon carrier subject to the provisions of this act 
to charge or receive any greater compensation 
for the transportation of passengers, or of like 
kind or classandquantity of property, for a shorter 
than for a longer distance over the same line, — the 
shorter being inc-luded within the longer distance; 
but this shall not be construed as authorizing any 
common carrier subject to the provisions of this 
act to charge or receive as gn^at compensation for 
a shorter as for a longer distance : jjrovided, how- 
ever, that, upon application to the commission ap- 
pointed under the provisions of this ac-t, such com- 
mon carrier may, in special cases, after investi- 
gation by the commissioners, be authorized to 
charge less for longer than for shorter d istances, for 
the transportation of passengers or property ; and 
the commission may from time to time lu-escribe 
the extent to which such designated common car- 
rier may be relieved from the operation of this 
section of this act. 

Sec. 7. ((I ) That it shall be unlawful for any 
common carrier subject. to the provisions of this 
act to cViarge or i-eceive any greater compensation 
per ton per mile, for the contemporaneous trans- 
jjortation of the same class of freight, for a longer 
than for a shorter distance over the same line, in 
the same general dii-ection. or from the same orig- 
inal point of departui e. or to the sanH> point of 
arrival ; but this shall not be construed as author- 
izing any common carrier subject to the provisions 
of this act to c-harge as high a rate per ton per 
mile for a longer as for a shorter distance, (h) 
Whenever any railway compariy doing business in 
this state .shall be unable, from any reasonable 
cause, to furnish cars at any railway station or 
.side track, in accordance with the demands made 
by all persons demanding cai's at such stations or 
side tracks for the shipment of gi-ain or other 
freigjit. such cars as are furnished shall be divid- 
ed as equally as may be among the applicants un- 
til each shipper shall have received at least one 
car, when the balance shall be divided ratably in 
proportion to the amount of daily receipts of grain 
or other freight to each .shipper, or to the amount 
of gi-ain offered at such station on side tracks. 
(c) There shall in no case be more than one ter 
minal charge for switching or transfeiring any car, 
whether the same is loaded or empty, within the 
limits of any one city or town. If it is necessary 
that any car pass over the tracks of more than one 
company, within such city or town limits, in or- 
der to reach its final destination, or to be returned 
therefrom to its owner or owners, then the company 
first switching or ti-ansferring such car shall be 
entitled to receive the entire charge to be made 
therefor, and shall be liable to the company or 
companies doing the subsequent switching or 
ti-ansferring thereof for its or their reasonable 



and equitable share of the compensation i-eceived; 
and, if tlie companies so jointly interested therein 
cannot agree upon the share thereof which each is 
entitled to receive, the same shall be determined 
by the board of railroad and warehouse commis 
sioners, whose decision thereon shall be final and 
conclusive upon all parties interested; and the 
said board are authcu'ized to establish such rules 
— I'egulations — in that behalf as to them may seem 
just and reasonable, and not in conflict with this 
act. 

Sec. 8. (<i) That every common caiTier subject 
to the provisions of this act shall, within six- 
ty (<■){)) days after this act shall take effect, print, 
and thereafter keep for public inspection, sched- 
ules showing the classification, rates, fares, and 
charges for the tronsijortation of passengers and 
property of all kinds and classes which such com- 
mon carrier has established, and which are in 
foi'ce at the time, upon its railroad, as defined by 
the first (1st) section of this act. This schedule, 
printed as aforesaid by such common carrier, 
shall plainly state the places upon its railroad be- 
tween which property and passengers will be car- 
ried, and shall contain classification of freight in 
force ux)oneach of the lines of such railroad, a dis- 
tance tariff, and a table of interstation distances, 
and shall aLso state separately the terminal 
chai'ges, and any rules or regulations which in 
any wise change, affect, or determine any part of 
the aggregate of such aforesaid rates, fares, and 
charges. Such schedules shall be plainly printed 
in large type, and copies for the use of the public 
shall be kept in every depot or station upon any 
sui-h railroad, in such places and in such form 
that they can be conveniently inspected. (/*) No 
change of classification .shall be made, and no 
change shall be made in the rates, fares, and 
charges which have been established and pub- 
lished as aforesaid, by any common carrier, in 
compliance with the requirements of this section, 
except after ten (!<>) days' public notice, which 
notice shall plainly state the changes proposed 
to be made in the schedules then in force, and 
the time when the changed schedules will go into 
effect; and the proposed changes will be shown 
by pi'lnting new schedules, or shall be plainly in 
dicated upon the schedules in force at the 1:lnie, 
and kept for public inspection, (c) And, when 
any common carrier shall have established and 
pviblished its classifications, rates, fares, and 
charges in compliance with the pi'ovisions of this 
section, it shall be unlawful for such common car- 
rier to charge, demand, i-ollect, or receive from 
any perscni or pei-sons a greater or less compensa 
tlon for the transportation of passengers or prop- 
erty, or for any service in connection therewith, 
than is specified in such published schedule of 
classifications, rates, fares, and charges as may at 
the time be in force, (d) Every common carrier 
subject to the provisions of this act shall file with 
the commission hereafter provided for in section 
ten (10) of this act copies of its schedules of clas- 
sifications, rates, fares, and charges which have 
been established and jmblished in compliance 
witli the requirements of this section, and shall 
promptly notify said commission of all changes 
proposed to be made in the same. Every [such] 
common carrier shall also file with said commis- 
sion copies of all conti-acts, agreements, or ar- 
i-angenicnts with other common carriers in relation 
to any traffic affected by the provisions of this act 
to which contracts, agreements, or arrangements 
it may be a party. And, in cases where passen 
gers or freight pass over lines or routes opei-ated 
by more than one common carrier, and the several 
common carriers operating such lines or routes 
establish joint schedules of i-ates or fares, or 
charges or classifications for such lines or routes, 
copies of such joint schedules shall also, in like 
manner, be filed with said commission. Such 
joint schedules of rates, fares, charges, and clas- 
sifications for such lines, so filed as aforesaid, 
shall also be made public by such common car 
riers, in the same manner as hereinbefore provid 
ed for the publication of tariffs upon Its own lines, 
(c) That, in case the commission shall at any time 



POLICE rOWER OE THE STATES. 



12:] 



find that any jiart of the tai-iffs of rates, fares, 
charges, oi' cki.ssiflieations so filed and published 
as hereinbefore provided are in any rcispeet un 
equal or unrtnisonable, it shall have the power, 
and is hereby authorized and directed, to compel 
any common cari'ier to change the same, and adopt 
such rate, fare, charge, or classification as said 
commission shall declare to be equal and reason- 
able. To which end the commission shall in writ- 
ing: inform such common carrier in what respect 
such tariff of I'ates. fares, charges, or classifica- 
tions are unequal and unreasonable, and shall I'Cc- 
ommend what tariffs shall be substituted there 
for. (/) Incase such common cariuer shall neglect 
or refuse for ten (10) days after such notice to 
substitute such tariff of rates, fares, charges, or 
classifications, or to adopt the same as recommend- 
ed by the commission, it shall be the duty of said 
commission to immediately publish such tariff of 
rates, fares, charges, or classifications as they had 
declaimed to be equal and x'easonable. and cause 
the same to be posted at all the regular stations 
on the line of such common carrier in this state ; 
and thereafter it shall be unlawful for such com 
mon carrier to charge or maintain a higlier or 
lowei- rate, fare, charge, or classification than 
that so fixed and piiblished by said commission. 
((/) If any common carrier subject to the provis 
ions of this act shall neglect or refuse to publish 
or file its schedule of classiflcations, rates, fares, 
or charges, or any part thereof, as provided in 
this section, or if any common carrier shall refuse 
or neglect to carry out such recommendation made 
and published by such commission, such common 
carrier shall be subject to a wTit of mandamufi. 
to be issued by any judge of the supreme court or 
of any of the district courts of this state, upon ap- 
plication of the commission, to compel compliance 
with the requirements of this section, and with 
the recommendation of the commission; and fail- 
ure to comply with the requirements of said writ 
of mand(tmii>i shall be punishable as and for con- 
tempt; and the said commission, as complainants, 
may also apply to any such judge for a Avrit of in- 
junction against .such common carrier from receiv- 
ing or transporting property or passengers within 
this state until such common carrier shall have 
complied wdth the I'equirements of this section. 
and the recommendation of said commissiom ; and. 
for any willful violation or failure to comply with 
such requirements or such X'ecommendation of said 
commission, the court may award such costs, in- 
cluding counsel fees, by waj^ of penalty, on the 
return of said writs, and after due deliberation 
thereon, as may be just. 

Sec. '.). (d) That a commission is hereby cre- 
ated and established to be known as the " Railroad 
and Warehouse Commission of the State of Min 
nesota, " which shall be composed of three Qi) 
commissioners, who shall be appointed by the gov 
ernor, by and with the advice and consent of the 
senate, (h) The commissioners first appointed 
under this act shall continue in office for the term 
of one, (1,) two, (2,) and three (3) years, respect- 
ively, and until their successors are appointed and 
qualified, beginning w^ith the fii^st (1st) Monday 
of January, A. D. 1889; the term of each to be des- 
ignated by the governor, but their successors shall 
be appointed for a term of three (3) years, and 
until their successors are appointed and qualified, 
except that any person cliosen to fill a vacancy 
shall be appointed only for the unexpired term of 
the commissioner whom he shall succeed. Any 
commissioner may be removed by the governor 
for inefficiency, neglect of duty, or malfeasance 
in office. Said commissioners shall not engage ii\ 
any other business, vocation, or emploj'ment while 
acting as such commissioners. No vacancy in the 
commission shall impair the right of the remain- 
ing commissioners to exercise all the powers of 
the commission, (e) Vacancies occasioned by re- 
moval, resignation, or other cause shall be tilled 
by the governoi" as provided incase of original ap 
pointments, Not moi'e than two of the commis- 
sioners appointed shall be members of the same 
political party. No pei'son in the emiJloy of, or 
holding anj- official relation to, any common car- 



rier subject to the provisions of this act, or any 
law of this state, or owning stocks or bonds, or 
other property thereof, or who is in any manner 
interested therein, shall enter upon the duties of 
or hold such office, (il) The decision of a major- 
ity of the commission shall be considei'ed the de- 
cision of the commission on all questions arising 
for its consideration. Before entering upon tlie 
duties of his offlce, each commissioner shall make 
and subscribe, and file with the secretary of state, 
an affidavit in the following form : 'I do solemnly 
swear (or aflQimi, as the case may be) that I will 
support the constitution of the United States, and 
the constitution of the state of Miimesota, and 
that I will faithfully discharge my duties as a 
member of the railroad and warehouse commis- 
sion of the state of Minnesota, according to the 
best of my ability; and Ifui'ther declare that I am 
not in the employ of, or holding any official rela- 
tion to, any common carrier within this state ; nor 
am I in any manner interested in any stock, bonds, 
or other property of such common cai'rier. ' (e) 
Eat'h commissiijner so appointed and qualified 
shall enter into bonds [to] of the state of Minne- 
sota, to be approved by the governor, in the sum 
of twenty ' thousand (30,000) dollars, conditioned 
for the faithful performance of his duty as a mem- 
ber of such commission, which bond shall be filed 
with the secretary of state. (/) The commission 
shall conduct its proceedings in such a manner 
as will best conduce to the proper dispatch of 
business, and to the ends of justice. A majority 
of the commissioners shall constitute a quoi-um 
for the transaction of business, but no commis- 
sioner shall participate in any hearing or proceed- 
ing in which he has anj' pecuniary interest. Said 
commissioner may from time to time make or 
amend such general rules or orders as may be 
requisite for the order and regulation of proceed- 
ings before it, including forms of notices and 
service thereof, which shall conform as nearly as 
may be to those in use in the courts of this state. 
Any party may appear before said commission, 
and be heard in person or by attorney. Every 
vote and official act of the commission shall be 
entered of record, and its proceedings shall be 
public upon the request of either party interested, 
or at the discretion of the commission. Said com- 
mission shall have an official seal, which shall be 
jtidicially noticed. Any member of the commis- 
sion may administer oaths and affii'mations. The 
principal office of the commission shall be in the 
city of St. Paul, where its general sessions shall 
be held. (;/) Whenever the convenience of the 
public or of the parties may be promoted, or de- 
lay or expenses prevented thereby, the commis- 
sion' may hold special sessions in an.y part of the 
state, it may, by one or more of the commission- 
ers, prosecute any inquiry necessary to its duties 
in any part of the state, into any matter or ques- 
tion of fact pertaining to the business of any com- 
mon carrier subject to the provisions of this act. 
(}i) The Attorney general of the state of Minnesota 
shall be c.r offlcUi attorney for the commission, 
and shall give them such counsel and advice as 
they may from time to time require; and he shall 
institute and prosecute any and all suits which 
said railroad and warehouse commission may^eem 
it expedient and proper to institute; and he shall 
render to such railroad and wai'ehouse commis 
sion all counsel, advice, and assistance neces- 
sary to carry out the provisions of this act, or of 
any law of this state, according to the true intent 
and meaning thereof. It shall likewise be the 
duty of the county attorney of any county in which 
suit is instituted or prosecuted to aid in the pros- 
ecution of the same to a final issue upon the re 
quest of such commission. Said commission are 
hereby authorized, when the facts in any given 
case shall in their judgment warrant, to employ 
any and all additional legal counsel that they may 
think pi-oper, expedient, and necessary to assist 
the attorney general or any county attoi'neyin the 
conduet and prosecution of any suit they may de- 
termine to bring under the pro\'isions of this act, 
01' of any law of this state. 
Sec. 10. (a) That the commission hereby ere- 



124 



THE POLICE POWER. 



ated shall have authority to inquire into the man- 
agement of the business of all common carriers 
subject to the provisions of this act, and shall 
keep itself informed as to the manner and method 
in which the same is conducted, and shall have 
the right to obtain from such common carriers full 
and complete information necessary to enable the 
commission to perform the duties,' and carry out 
the objects, for which it was created. In order to 
enable said commissioners efficiently to perform 
their duties under this act, it is hereby niade 
their duty to cause one of their number "to visit 
the various stations on the lines of each railroad 
as often as practicable, after giving twenty (20) 
days' notice of such visit, and the time and" place 
thereof, in the local newspapers, and at least once 
in twelve (12) months to visit each county in the 
state in which is or shall be located a railroad 
station, and personally inquire into the manage- 
ment of such I'ailroad business; and, for this pur- 
pose, all railroad companies and common carriers, 
and their ofticers and employes, are required to 
aid and furnish each member of the railroad and 
warehouse commission with reasonable and proper 
facilities; and each or all of the members of said 
commission shall have the right, in his or their 
official capacity, to pass free on any railroad trains 
on all railroads in this state, and to enter and 
remain in, at all suitable times, any and all cars, 
offices, or depots, or upon the railroads, of any 
railroad company in this state, in the performance 
of official duties; and whenever, in the judgment 
of the commission, it shall appear that any com- 
mon carrier fails in any respect or particular to 
comply with the laws of this state, or whenever, 
in their judgment, any repairs are necessary upon 
its railroad, or any addition to or change of its 
stations or station-houses is necessary, or any 
change in the mode of operating its road or con- 
ducting its business is reasonable or expedient, in 
order to promote the security, convenience, and 
diccommodation of the public, said commission 
shall inform such railroad company, by a notice 
thereof in writing, to be served as a summons in 
civil actions is required to be served by the stat- 
utes of this state in actions against corporations, 
certified by the commission's clerk or secretary; 
and, if such common carrier shall neglect or re- 
fuse to comply with such order, then the commis- 
sion may, in its discretion, cause suits or proceed- 
ings to be instituted to enforce its orders as pro- 
vided in this act. 

Sec. 11. (d) That, in case any common carrier 
subject to the provisions of this act shall do, 
cause to be done, or permit to be done, any act or 
thing in this act prohibited or declared to be un- 
lawful, or shall omit to do any act, matter, or 
thing in this act required to be done, such com- 
mon carrier shall be liable to the person or per- 
sons, party or parties, injured thereby, for the full 
amount of damages sustained in consequence of 
any such violation of the provisions of this act, 
together with a reasonable counsel or attorneys" 
fee, to be fixed by the court in every case of "re 
covery, which attorney's fees shall "be taxed and 
collected as part of the costs in the case, (h) 
That any person or persons, party or parties, claim- 
ing to be damaged by the action or non-action of 
any common carrier subject to the provisions of 
this act, may either make complaint to the com- 
mission, as hei-einafter provided for, or may bring 
suit in his or their own behalf for the recovery of 
the damages for which such common carrier may 
be liable under the provisions of this act, in any 
district court of this state of competent jurisdic- 
tion ; but such person or persons shall not have 
the right to pursue both of said remedies at the 
same time, (c) In any action brought for the re- 
covery of damages, the court before which the 
same shall be pending may compel any director, 
officer, receiver, trustee, or agent of any corpora- 
tion or company, defendant in such suit, to at- 
tend, appear, and testify in such case, and may 
compel the prodiiction of the books and papers of 
such corporation or company, party to any such 
suit; the claim that any .such testimony or evi- 
dence may tend to criminate the person giving such 



evidence shall not excuse such witness from tes- 
tifying, but such evidence or testimony shall not 
be used against such person on the trial of any 
criminal proceeding. 

Sec. 12. That any common carrier, subject to 
the provisions of this act, or, whenever such com- 
mon carrier is a corporation, an.y director or offi- 
cer thereof, or any receiver, ti'ustee, lessee, agent, 
or person acting for or employed by such corpo- 
ration, who, alone or with any other corporation, 
company, person, or party, shall willfully do or 
cause to be done, or shall willfully suffer or per- 
mit to be done, any act, matter, or thing in this 
act prohibited, or declared to be unlawful, or who 
shall aid or abet therein, or shall willfully omit 
or fail to do any act, matter, or thing in this act 
required to be done, or shall cause or willingly 
suffer or permit any act, matter, or thing so di- 
rected or required by this act to be done, not to 
be so done, or shall aid and abet therein any such 
omission, or shall be g-uilty of any willful infrac- 
tion of this act, or shall aid or abet therein, shall 
be deemed guilty of a violation of the provisions 
of this act, and shall, upon conviction thereof in 
any district court of the state within the jurisdic- 
tion of which such offense was committed, be sub- 
ject to a penalty of not less than two thousand five 
hundred (2,500) dollars or more than five thousand 
(5,000) dollars for the fii-st offense, and not less 
than five thousand (5,000) dollars or more than ten 
thousand (10,000) dollars for each subsequent of- 
fense. 

Sec. 13. (a) That any person, firm, corpora- 
tion, or association, or any mei'cantile, agricult- 
ural, or manufacturing society, or any body pol- 
itic or municipal organization, complaining of 
anything done or omitted to be done by any com- 
mon carrier subject to the provisions of this act, 
in contravention of the provisions thereof, may 
apply to said commission by petition, which shall 
briefly state the facts, (h) Whereupon a state- 
ment of the charges thus made shall be forwarded 
by the commission to such common carrier, who 
shall be called upon to satisfy the comi^laint, or 
to answer the same in writing within a reason- 
able time, to be specified by the commission. If 
such common carrier, within the time specified, 
shall make reparation for the injury alleged to 
have been done, said carrier shall be relieved of 
liability to the complainant only for the particu- 
lar violation of law thus complained of. If such 
carrier shall not satisfy the complaint within the 
time specified, or there shall appear to be any 
reasonable gi'ound for investigating said com- 
plaint, it shall be the dvity of the commission 
summarily to investigate the matter complained 
of in such" manner and by such means as it shall 
deem proper. No comi)laint shall at any time be 
dismissed because of absence of direct damages 
to the complainant. And, for the purposes of this 
act, the commission shall have power to require 
the attendance of witnesses, and the production 
of all books, papers, contracts, agreements, and 
documents relating to any matter under investi- 
gation, and to that end may invoke the aid of any 
of the courts of this state, in requiring the attend- 
ance of witnesses, and the production of books, 
papers, and documents, under the provisions of 
this act. (c) Any of the district courts of this 
state within the jurisdiction of which such inquiry 
is carried on shall, in case of contumacy or re- 
fusal to obey a subpoena issued by the commis- 
sioners to any common carrier subject to the 
provisions of this act, or, when such common car- 
rier is a corporation, to an officer or agent there- 
of, or to any person connected therewith, if pro- 
ceedings are instituted in the name of such com- 
mission as plaintiffs, issue an order requiring such 
common carrier, officer, or agent, or person to 
show cause why such contumacy or refusal should 
not be punished as and for contempt; and if, upon 
the hearing, the court finds that the inquiry is 
within the jurisdiction of the commission, and 
that such contumacy or refusal is willful, and the 
same is persisted in, such contumacy or refusal 
shall be punished as though the same had taken 
place in an action pending in the disti-ict court 



POLICE POWER OF THE STATES. 



125 



for any judicial district in this state. The claim 
that any such testimony or evidence may tend to 
criminate the person giving such evidence shall 
not excuse such witness from testifying, but such 
evidence or testimony shall not be used against 
such persons on the ti'ial of any criminal pro- 
ceeding. 

Sec. 14. (a) Whenever an investigation shall 
be made by said commission, it shall be its duty 
to make a report in writing in respect thereto, 
which shall include the findings of fact upon which 
the conclusions of the commission are based, to- 
gether with its recommendation as to what repara- 
tion, if any, should be made by the common car- 
rier to party or parties who may be found to have 
been injured; and such findings so made shall 
thereafter, in all judicial proceedings, be deemed 
prima facie evidence as to each and every fact 
found. AH reports of investigations made by the 
commission shall be entered of recoi-d, and a copy 
thereof shall be furnished to the party who may 
have complained, and to any common carrier that 
may have been complained of, and the record 
thereof shall be public, (b) If, in any case in 
which an investigation shall be made by said 
commission, it shall be made to appear to the sat- 
isfaction of the commission, either by testimony 
of witnesses or other evidence, that anything has 
been done or omitted to be done by any common 
carrier in violation of the provisions of this act, 
or of any law cognizable by said commission, or 
that any injury or damages has been sustained by 
the party or parties complaining, or by other par- 
ties aggrieved in consequence of any such viola- 
tion, it shall be the duty of the commission to 
forthwith cause a copy of its report in respect 
thereto to be delivered to such common carrier, to- 
gether with a notice to said common carrier to cease 
and desist from such violation, and to make repa- 
ration for the injury so found to have been done, 
within a brief but reasonable time, to be specified 
by the commission; and if, within the time speci- 
fied, it shall be made to appear to the commission 
that such common carrier has ceased from such 
violation of law, and has made reparation for the 
injury found to have been done, in compliance 
with the report and notice of the commission, or 
to the satisfaction of the party complaining, a 
statement to that effect shall be entered of record 
by the commission, and the said common carrier 
shall thereupon be relieved from further liability 
or penalty for such particular violation of law. 
(c) But if said common carrier shall neglect or 
refuse, within the time specified, to desist from 
such violation of law, and make reparation for 
the injury done in compliance with the report and 
notice of the commission as aforesaid, it shall be 
the duty of the commission to forthwith certify 
the fact of such neglect or refusal, and forward a 
copy of its report and such certificate to the attor- 
ney general of the state for redress and punish- 
ment as hereinafter provided. 

Sec. 15. (o) That it shall be the duty of the 
attorney general to whom said commission may 
forward its report and certificate, as provided in 
the next preceding section of this act, when it 
shall appear from such report that any injury or 
damages has been sustained by any party or par- 
ties by reason of such violation of law by such 
common carrier, to forthwith cause suit to be 
brought in the district court in the judicial dis- 
trict wherein such violation occurred, on behalf 
and in the name of the person or persons injured, 
against sdch common cari'ier, for the recovery of 
damages for such injury as may have been sus- 
tained by the injured party ; and the cost and ex- 
per=;ps of sxich prosecution shall be paid out of the 
ai pro_,riatioa hereinafter provided for the uses 
ana pui^poses of this act. (b) And the said coari 
shall have power to hear and determine the mat- 
ter on such short notice to the common carrier 
complained of as the court shall deem reasonable ; 
and such notice shall be served on such common 
carrier, his or its officers, agents, or servants, in 
such manner as the court shall direct; and said 
court shall proceed to hear and determine the mat- 
ter speedily, and without the formal pleading and 



proceedings applicable to ordinary suits in equity, 
but in such manner as to do justice in the prem- 
ises ; and to this end such court shall have power, 
if it thinks fit, to direct and prosecute, in such 
mode and by such persons as it may appoint, all 
such inquiries as the court may think needful to 
enable it to form a just judgment in the matter of 
such petition. And on such hearing the report of 
said commission shall be prima facie evidence of 
the matters therein stated, (c) And, if it be 
made to appear to such court on such hearing, or 
on report of any such person or persons, that the 
lawful order or requirement of such commission 
drawn in question has been violated or disobeyed, 
it shall be lawful for such court to issue a writ of 
injunction, or other proper process, mandatory or 
otherwise, to restrain such common carrier from 
further continuing such violation, or such disobe- 
dience of such order or requirement of said com- 
mission, and enjoining obedience to the same; 
and, in case of any disobedience of any such writ 
of injunction or other proper process, mandatory 
or otherwise, it shall be lawful for such court to 
issue writs of attachment, or any other processof 
said court incident or applicable to writs of in- 
junction or other proper process, mandatory or 
otherwise, against such common carrier, and, if 
a corporation, against one or more of the direct- 
ors, officers, or agents of the same, or against any 
owner, lessee, trustee, receiver, or other person 
failing to obey such writ of injunction or other 
proper process, mandatory or otherwise ; and said 
court may, if it shall think fit, make an order di- 
recting such common carrier or other person so 
disobeying such writ of injunction or other proper 
process, mandatory or otherwise, to pay such sum 
of money, not exceeding, for each carrier or per- 
son in default, the sum of five hundred (500) dol- 
lars for every day after a day to be named in the 
order, that such carrier or other person shall fail 
to obey such injunction or other proper process, 
mandatory or otherwise; and such moneys shall 
be payable as the court shall direct, either to the 
party complaining, r into court to abide the ulti- 
mate decision of the court; and payment thereof 
may, without prejudice to any other mode of re- 
covering the same, be enforced by attachment or 
order in the nature of a writ of execution, in like 
manner as if the same had been recovered by a 
final decree in personam in such court. Either 
l^arty to such proceeding before said court may 
appeal to the supreme court of the state, under the 
same regulations now provided by law in respect 
to security for such appeal ; but such appeal shall 
not operate to stay or supersede the order of the 
court, or the exegution of any writ or process 
thereon, unless the coux't hearing or deciding such 
case should otherwise direct ; and such court may 
in every such matter order the payment of such 
costs and counsel fees as shall be deemed rea- 
sonable, (d) In case the attorney general shall 
not, within a period often (10) days after the mak- 
ing of any oi'der by the commission, commence 
judicial proceedings for the enforcement thereof, 
any railroad company or other common carrier 
affected by such order may, at any time within 
the period of thirty (30) days after the service 
[of it] upon him or it of such order, and before 
commencement of proceedings, appeal therefrom 
to the district court of any judicial disti-itt through 
or into which his or its x-oute may run, by the 
service of a written notice of such appeal upon 
some member or the secretary of such commis- 
sion. And upon the taking of such appeal, and 
the filing of the notice thereof, with the proof of 
service, in the office of the clerk of such court, 
there shall be deemed to be pending in such court 
a civil action of the character and for the purposes 
mentioned in sections eleven (11) and fifteen (15) of 
this act. Upon such appeal, and upon the heai'ing of 
any application for the enforcement of any such 
order made by the commission or by the attorney 
general, the court shall have jurisdiction to ex- 
amine the whole matter in. controversy, including 
matters of fact as well as questions of law, and 
to affirm, modify, or I'escind such oi'der in whole 
or in part, as justice may require; and, incase of 



126 



THE rOLICE POWER. 



any order being modified as aforesaid, snob modi- 
fied order shall, for all the purposes eonteniplated 
by this act, stand in place of the original ox'der so 
modified. No appeal as aforesaid shall stay or 
supersede the order appealed from in so far as 
such order shall relate to rates of Transjjortation, 
or to modes of transacting the business of the ap- 
pellant with the public, unless the coui't hearing 
or deciding suc'h t'ase shall so direct. 

Wee. IG. (f() That whenever facts, in any man- 
ner ascertained by said commission, shall in its 
judgment warrant a prosecution, it shall be the 
duty of said commission to immediately cause 
suit to be institvited and prosecuted against any 
connnon carrier who may violate any of the pi'o- 
visions of this act, or of any law of this state. 
All such prosecutions shall be in the name of the 
state of Minnesota, except as is otherwise provid- 
ed in this act, or in any law of this state, and 
may be instituted in any county in the state 
through or into which tlie line of any common 
carrier so sued may extend; and all penalties re- 
covered under the provisions of this act, or of any 
law of this state, in any suit instituted in the 
name of the state, shall be immediately paid into 
the state ti'easury by the sheriff or other officer or 
person collecting the same, and the same shall be 
by the state treasurer placed to the credit of the 
general revenue fund. (/») For the purposes of 
this act, except its penal provisions, the district 
courts of this state shall be deemed to be always 
in session. 

Sec. 17. (a) That the commission is hereby 
directed to require annual reports from all com- 
mon carriei's subject to the jirovisions of this act, 
to fix the time and prescribe the manner in which 
said repoi'ts shall be made, and to require from 
such carriers specific answers to all questions 
upon which the commission may need information. 
iSuch annual reports shall show in detail the 
amount of capital stock issued, the amounts paiil 
therefor, and the manner of jjayment for the same, 
the dividends paid, tlic suiphis fund, if any, and 
the number of stocklii^l(l(>rs, the funded and float- 
ing debts and the interest paid thereon ; the cost 
and value of the carrier's i)roperty, franchises, 
and (Hjuipment; the number of employes, and 
the salai-y paid each class ; the amounts expended 
for improvements each year, how expended, and 
the character of such improvements; the earn- 
ings and receipts of each branch of business, and 
from all sources ; the operating and other expenses ; 
the balance of profit and loss ; and complete 
exhibit of the financial operations of the i-arrier 
each year, including an annual balance-sheet; 
also, the total number of acres of land recei ved as 
grants either from the United States or fi'om the 
state of Minnesota, the number [ofj acres of said 
grants sold, and average price received per acre, 
the number acres of gi-ants unsold, and the ap 
praised value per acre. Such detailed reports shall 
also contain such information in relation to rates 
or regiilations concerning fares or freights and 
agTeements. arrangements or contracts with ex- 
press companies, telegraph companies, sleeping 
and dining car companies, fast freight lines, and 
other common carriers, as the commission may 
require, with copies of such contracts, agi-ee- 
ments. or arrangements. (/>) And the commis- 
sion may, within its discretion, for the purpose 
of enabling it the better to cari-y out the purposes 
of this act, pi'escribe (if, iji the opinion of the 
t'ommission, it is practicable to prescribe such 
uniformity and methods of keeping accounts) a 
period of time within which all common carriers 
subject to the provisions of this act .shall have, as 
mar as may be, a uniform system of accounts, 
and the manner in which such accounts shall be 
ktp". 

> vc. 18. ((() That such commissioners shall, 
on or before the first (1st) day of December in 
each year, and oftener, if required by the govern- 
or to do so. make a report to the" governor of 
their doings for the preceding year, containing .such 
fac-ts. statements, and explanations as will dis 
close the actual workings of the system of rail 
.■oad ti-ansportation in its bearings upon the busi 
ness and prosperity of the people of this state, and 



such suggestions in relation thei'eto as to them 
may seem appropriate, (/j) They shall also, at 
such times as the governor shall direc-t. examine 
any particular subject connected with the condi- 
tions and managenient of such railroads, and re- 
port to him in writing their opinion thereon, with 
their reasons therefor. Said commissioners shall 
also investigate and consider what, if any, amend- 
ment or revision of the railroad laws of this state 
the best interests of the state demand, and they 
shall make a special biennial report on said sub- 
ject to the governor. All such reports made to the 
governor shall be by him transmitted to the legis- 
lature at the earliest practicable time, (c) Noth- 
ing in this act contained shall in any way abridge 
or alter the remedies now existing at common law 
or by statute, but the pi-ovisions of this act are in 
addition to such remedies : provided, that no pend- 
ing litigation shall in any way be affected by this 
ac-t. 

Sec. 19. Each commissioner shall receive an 
annual salary of three thousand (8. ()()()) dollai's, 
payable in the same manner as the salaries of 
other state offii-ers. The commissioners .shall ap- 
point a sei-retary, who shall receive an annual sal- 
ary of eighteen hundred (1,800) dollars, payable 
in" like manner. Said secretary shall, befoi'e en- 
tering upon the duties of his office, make and file 
with the secretary of state an affidavit in the fol- 
lowing form : "I do solemnly swear or affirm ( as the 
case may be) that I will support the constitution 
of the United States and the constitution of the 
state of Minnesota, and that I will faithfully dis- 
charge mj' duties as secretary of the railroad and 
warehouse commission of the state of Minnesota, 
according to the best of my ability; and I further 
declare that I am not in the employ of, or holding 
any official relation to, any common carrier or 
grain warehouseman within said state, nor am I 
in any manner interested in any stock, bonds, or 
other property of such common carrier or grain 
warehouseman. " The said secretary so appointed 
and qualified shall enter into bonds to the state of 
Minnesota, to be approved by the governor, in the 
sum of ten thousand (10.000) dollars, conditioned 
for the faithful performance of his duty as secre- 
taiw of such conunission, which bond shall be filed 
with the secretary of state. Tlieconiniission shall 
have authority to employ and fix tiie compensation 
for such other employes as it may find necessary 
to the proper performance of its duties, subject to 
the approval of the governor of the state. The 
commissioners shall be fm-nished with a suitable 
office, and all nec<>ssary office supplies. Witnesses 
summoned before the commission shall be paid the 
same fees and mileage that are paid witnesses in the 
district courts of the state. All the expenses of the 
commission, including all necessary expenses for 
transportation incuri-ed by the commissioners, or 
by their employes under their order, in making 
any investigation in any other place than the city 
of St. Paul, shall be allowed and paid out of the 
state treasury on the presentation of itemized 
vouchers therefor approved by the chairman of the 
commission and the state auditor. 

Sec. 20. That the sum of fifteen thousand (15,000) 
dollars is hereby appropriated for the use and 
purposes of this act fen* the fiscal year ending 
July thirty-first, (31st,) eighteen hundred and 
eighty-eight, (1888;) and the sum of fifteen thou- 
sand (!."). 000) dollars is hereby appropriated for the 
uses and purposes of this act for the fiscal year 
ending July thirty-first, (31st.) eighteen hundred 
and eighty nine, (1SS9. ) 

Sec. 21. That all acts and parts of acts in- 
consistent herewith are hereby repealed : provid- 
ed, that the provisions of this act shall apply to 
and govern the existing railroad and warehouse 
commissioners appointed by virtue of an act ap- 
proved March fifth, (5th, ) "eighteen hundred and 
eighty-five, (1SS5, ) who are hereby clothed with 
the powers, and charged with the duties and re- 
sponsibilities, of this act, granted to and imposed 
upon the railroad and warehouse commissioners 
of the state of Minnesota. 

Sec. 22. This act shall take effect and be in 
force from and after its passage. 

Approved Maivh 7, 1857. 



rOLlCE POWER OF THE STATES. 



127 



POWELL V. COMMONWEALTH OF PENN- 
SYLVANIA. 

C8 Sup. Ct. 992, 127 U. S. 678.) 

Supreme Court of the L'nited States. April 9, 
1888. 

In error to the supreme court of the state 
of Peiinsylvauia. 

D. T. Watson, for plaintiff in error. Wayne 
MacYeagh and W. S. Kirkpatrick, Atty. Gen., 
for defendant in error. 

HARL^j^N, J. This writ of error brings up 
for review a judgiuent of the supreme court 
of Pennsylvania, sustaining the validity of a 
statute of that commonwealth relating to the 
manufacture and sale of what is commonly 
called "oleomargarine butter." That judg- 
ment, the plaintiff in error contends, denies 
to him certain rights and privileges special- 
ly claimed under the fourteenth amendment 
to the constitution of the United States. By 
acts of the general assembly of Pennsyh^a- 
nia, one approved May 22, 1878, and enti- 
tled "An act to prevent deception in the sale 
of butter and cheese," and the other approved 
May 24, 1883, and entitled "An act for the 
protection of daiiymen, and to prevent decep- 
tion in sales of butter and cheese," provision 
Avas made for the stamping, branding, or 
marking, in a prescribed mode, manufactured 
articles or substances in semblance or imita- 
tion of butter or cheese, not the legitimate 
product of the dairy, and not made exclu- 
sively of milk or cream, but into which oil, 
lard, or fat, not produced from milk or cream, 
entered as a component part, or into which 
melted butter, or any oil thei'eof, had been in- 
troduced to take the place of cream. Laws 
Pa. 1878. p. 87; 1883, p. 43. But this legis- 
lation, we presume, failed to accomplish the 
objects intended by the legislature. For, by 
a subsequent act approved May 21, 188.5, and 
wdiich took eft"ect .July 1, 188.5, entitled "An 
act for the protection of the public health, 
and to prevent adulteration of dairy prod- 
ucts, and fi'aud in the sale thereof." it was 
provided, among other things, as follows: 

"Section 1. That no person, lirm, or corpo- 
rate body shall manufacture out of any ole- 
aginous substance, or any compound of the 
same, other than that produced from unadul- 
terated milk, or of cream from the same, 
any article designed to take the place of but- 
ter or cheese produced from pure, unadulter- 
ated milk, or cream from the same, or of any 
imitation or adulterated butter or cheese, nor 
shall sell, or offer for sale, or have in his, her, 
or their possession, Avith intent to sell, the 
same as an article of food. 

"Sec. 2. EA'ery sale of such article or sub- 
stance which is prohibited by the first sec- 
tion of this act, made after this act shall 
take effect, is hereby declared to be unlawful 
and A'oid, and no action shall be maintained 
in any of the courts in this state to recover 



upon any contract for the sale of any such ar- 
ticle or substance. 

"Sec 3. Every person, company, firm, or . 
corporate body who shall manufacture, sell,, 
or offer or e.xpose for sale, or have in his, 
her, or their possession with intent to sell, 
any substance the manufacture and sale of 
which is prohibited by the first section of this 
act, shall, for every such offense, forfeit and 
pay the sum of one hundred dollars, which 
shall be recoverable, with costs, by any per- 
son suing in the name of the commonwealth, 
as debts of like amount are by law recover- 
able; one-half of which sum, when so recov- 
ered, shall be paid to the proper county treas- 
urer for the use of the county in which suit 
is brought, and the other half to the person 
or persons at whose instance such a suit shall 
or may be commenced and prosecuted to re- 
coA'ers'. 

"Sec. 4. Every person who violates the pro- 
vision of the first section of this act shall 
be deemed guilty of a misdemeanor, and up- 
on conviction shall be punished by a fine of 
not less than one hundred dollars, nor more 
than three hundred, or by imprisonment in 
the county jail for not less than ten nor more 
than thirty days, or both such fine and im- 
prisonment, for the first offense, and impris- 
onment for one year for every subsequeut of- 
fense." 

The plaintiff in error was indicted, under 
the last statute, in the court of quai'ter ses- 
sions of the peace in Dauphin county, Pa. 
The charge in the first count of the indict- 
ment is that he unlawfully sold, "as an arti- 
cle of footf. two eases, containing tive pounds 
each, of an article designed to take tlie place 
of butter produced from pure, unadulterated 
milk, or cream from milk, the said article so 
sold, as aforesaid, being an article manufac- 
tured out of certain oleaginous substances, 
and compounds of the same, other than that 
produced fi-om unadulterated milk, or cream 
from milk, and said article so sold, as afore- 
said, being an imitation butter." In the sec- 
ond count the charge is that he unlaAvfully 
had in his possession, "with intent to sell the 
same, as an article of food, a (luantity, viz.. 
one hundred pounds, of imitation butter, de- 
signed to take the place of butter produced 
from pure, unadulterated milk, or cream from 
the same, manufactured out of certain ole- 
aginous substances, or compounds of the 
same, other than that produced from milk, 
or cream from the same." It was agreed, for 
the purposes of the trial, that the defendant 
on .Tuly 10, 1S85, in the city of ITarrisburg, 
sold to the prosecuting witness, as an article of 
food, two original packages of the kind de- 
scribed in the first count; that such ixickages 
were sold and bought as "butteriue," and not 
as butter produced from pure, unadulter- 
ated milk, or cream from unadulterated milk; 
and that each of said packages Avas, at the 
time of sale, marked AA'ith the words, "Oleo- 
margarine Butter," upon the lid and side in 



126 



THE POLICE rOWER. 



a straight line, in Roman lettei*s half an inch 
long. It was also agreed that the defendant 
had in his possession 100 pounds of tlie same 
article, Avitli intent to sell it as an article 
of food. This was the case made by the 
commonwealth. The defendant then offered 
to prove by Prof. Hugo Blanck that he saw 
manufactured the article sold to the pi'ose- 
cuting witness; that it was made from pure 
animal fats; that the process of manufacture 
was clean and wholesome, the article con- 
taining the same elements as dairy butter, 
the only difference between them being that 
the manufactured article contained a smaller 
proportion of the fatty substance known as 
^'butterine"; that this butterine existed in 
dairy butter in the proportion of from H to 
7 per cent., and in the manufactured article 
in a smaller pi-oportion, and was increased 
in the latter by the introduction of milk and 
cream; that, this having been done, the ar- 
ticle contained all the elements of butter pro- 
duced from pure, unadulterated milk, or 
cream from the same, except that the per- 
centage of butterine was slightly smaller; 
that the only effect of butterine was to give 
flavor to the butter, and that it had nothing 
to do with its wholesomeness; that the ole- 
aginous substances in the manufactured arti- 
cle were substantially identical with those 
produced from milk or cream; and that the 
article sold to the prosecuting witness was a 
wholesome and nutritious article of food, in 
all respects as wholesome as butter produced 
from pure, unadulterated milk, or cream 
from unadulterated milk. The defendant al- 
so offered to prove that he was Agaged in 
the grocery and provision business in the city 
of Harrisburg, and that the article sold by 
him was part of a large and valuable (luan- 
tity manufactured prior to the 21st of May, 
18S5, in accordance with the laws of this 
commonwealth relating to the manufacture 
and sale of said article, and so sold by him; 
that for the purpose of prosecuting that busi- 
ness large investments were made by him in 
the purchase of suitable real estate, in the 
■erection of proper buildings, and in the pur- 
chase of the necessary machinery and ingre- 
dients; that in his traffic in said articie he 
made large profits; and, if prevented from 
contimiiug it, the value of his property em- 
ployed therein would be entirely lost, »nd 
lie be deprived of the means of livelihood. 
To each offer the commonwealth objected up- 
on the ground that the evidence proposed to 
be introduced was immaterial and irrelevant. 
The purpose of these offers of proof was 
avowed to be (1) to show that the article sold 
was a new invention, not an adulteration of 
dairy products, nor injurious to the public 
health, but wholesome and nutritious as an 
article of food, and that its manufacture and 
sale were in conformity to the acts of May 
22, 1S7S, and May 24, 1SS3; (2) to show that 
the statute upon Avhich the prosecution was 
founded was unconstitutional, as not a law- 
ful exercise of police power, and also be- 



cause it deprived the defendant of the lawful 
use "of his property, liberty, and faculties, 
and destroys his property without making 
compensation." The couit sustained the ob- 
jection to each offer, and excluded the evi- 
dence. An exception to that ruling was du- 
ly taken bj^ the defendant. A verdict of 
guilty having been returned, and motions in 
arrest of judgment and for a new trial hav- 
ing been overruled, the defendant was ad- 
judged to pay a tine of $100 and costs of 
prosecution, or give bail to pay the same in 
10 days, and be in custody until the judg- 
ment was performed. That judgment was 
affirmed by the supreme court of the state. 
114 Pa. St. 2G5, 7 Atl. 913. 

This case, in its important aspects, is gov- 
erned by the principles announced in Mug- 
ler V. Kansas, 123 U. S. 623, 8 Sup. Ct. 273. 
It is immaterial to inquire Avhether the acts 
with v.'hich the defendant is charged were 
authorized by the statute of May 22, 1878, 
or by that of May 24, 1883. The present 
prosecution is founded upon the statute of 
May 21, 1885; and, if that statute be not in 
conflict with the constitution of the United 
States, the judgment of the supreme court 
of Pennsylvania must be affirmed. It is 
contended that the last statute is void in 
that it deprives all coming within its pro- 
visions of rights of liberty and property 
without due process of law, and denies to 
them the equal protection of the laws, — 
rights which are secured by the fourteenth 
amendment of the constitution of the United 
States. It is scarcely necessary to say that 
if this statute is a legitimate exercise of the 
police power of the state for the protection 
of the health of the people, and for the pre- 
vention of fraud, it is not inconsistent with 
that amendment; for it is the settled doc- 
trine of this court that, as government is 
organized for the purpose, among others, of 
preserving the public health and the public 
morals, it cannot divest itself of the power 
to provide for those objects, and that the 
fourteenth amendment was not designed to 
interfere with the exercise of that pov.'er 
by the states. Mugler v. Kansas, 123 U: S. 
623, 8 Sup. Ct. 273; Union Co. v. Crescent 
City Co., Ill U. S. 746. 7r.l, 4 Sup. Ct. 652; 
Barbier v. Connolly. 113 U. S. 27, 5 Sup. Ct. 
357; Yick Wo v. Hopkins, 118 U. S. 356, 6 
Sup. Ct. 1064. The question, therefore, is 
whether the prohibition of the manufacture 
out of oleaginous substances, or out of any 
compound thereof, other than that produced 
from unadulterated milk, or cream from un- 
adulterated milk, of an article designed to 
take the place of butter or cheese produced 
from pure, unadulterated milk, or cream 
from unadulterated milk, or the prohibition 
upon the manufacture of any imitation or 
adulterated butter or cheese, or upon the 
selling, or offering for sale, or having in pos- 
session with intent to sell, the same, as an 
article of food, is a lawful exercise by the 
state of the power to protect, by police reg- 



POLICE POWER OF THE STATES. 



129 



ulations, the public health. The main prop- 
osition advanced by the defendant is that 
his enjoyment upon terms of equality with 
all others in similar circumstances of the 
privilege of pursuing an ordinary calling or 
trade, and of acquiring, holding, and selling 
property, is an essential part of his rights 
of liberty and property as guarantied by the 
fourteenth amendment. The court assents 
to this general proposition as embodying a 
sound principle of constitutional law. But 
it cannot adjudge that the defendant's rights 
of liberty and property, as thus defined, have 
been infringed by the statute of Pennsyl- 
vania, without holding that, although it may 
have been enacted in good faith for the ob- 
jects expressed in its title, mainly, to pro- 
tect the public health, and to prevent the 
adulteration of dairy products, and fraud in 
the sale thereof, it has, in fact, no real or 
substantial relation to those objects. Mug- 
ler V. Kansas, 123 U. S. G2.3, 8 Sup. Ct. 273. 
The court is unable to affirm that this legis- 
lation has no real or substantial relation to 
such objects. It will be observed that the 
offer in the court below was to show by 
proof that the particular articles the defend- 
ant sold, and those in his possession for 
sale, in violation of the statute, were, in fact, 
wholesome or nutritious articles of food. It 
is entirely consistent with that offer that 
many, indeed that most, kinds of oleomarga- 
_rine butter in the market contain ingredi- 
ents that are or may become injurious to 
health. The court cannot say, from any- 
thing of which it may take judicial cogni- 
zance, that such is not the fact. Under the 
circumstances disclosed in the record, and 
in obedience to settled niles of constitutional 
construction, it must be assumed that such 
is the fact. "Every possible presumption," 
Chief Justice Waite said, speaking for the 
court, in Sinking Fund Cases, 99 U. S. 718, 
"is in favor of the validity of a statute, and 
this continues until the contrary is shown 
beyond a rational doubt. One branch of the 
government cannot encroach on the domain 
of another without danger. The safety of 
our institutions depends in no small degree 
on a strict observance of this salutai'y rule." 
See also Fletcher v. Peck, 6 Cranch, 128; 
Dartmouth College v. Woodwai'd, 4 Wheat. 
518, 625; Livingston v. Darlington, 101 U. 
S. 407. Whether the manufacture of oleo- 
margarine, or imitation butter, of the kind 
described in the statute, is or may be con- 
ducted in such a way, oi with such skill and 
secrecy, as to baffle ordinary inspection, or 
whether it involves such danger to the pub- 
lic health as to require, for the protection of 
the people, the entire suppression of the 
business rather than its regulation in such 
manner as to permit the manufacture and 
sale of articles of that class that do not con- 
tain noxious ingredients, are questions of 
fact and of public policy which belong to 
the legislative department to determine. 
And as it does not appear upon the face of 

SMITH, CONST. LAW — 9 



the statute, or from any facts of which the 
court must take judicial cognizance, that it 
infringes rights secured by the fundamental 
law, the legislative determination of those 
questions is conclusive upon the courts. It 
is not a part of their functions to conduct 
investigations of facts entering into ques- 
tions of public policy merely, and to sustain 
or frustrate the legislative will, embodied 
in statutes, as they may happen to approve 
or disapprove its determination of siieh ques- 
tions. The power which the legislature has 
to promote the general welfare is very great, 
and the discretion which that department of 
the government has, in the employment of 
means to that end, is very large. While 
both its power and its discretion must be so 
exercised as not to impair the fundamental 
rights of life, liberty, and property, and 
while, according to the principles upon which 
our institutions rest, "the very idea that one 
man may be compelled to hold his life, or 
the means of living, or any material right es- 
sential to the enjoyment of life, at the mere 
will of another, seems to be intolerable in 
any country where freedom prevails, as be- 
ing the essence of slavery itself," yet "in 
many cases of mere administration, the re- 
sponsibility is purely political, no appeal ly- 
ing except to the ultimate tribunal of the 
public judgment, exercised either in the 
pressure of public opinion, or by means of 
1^e suffrage." Tick Wo v. Hopkins, 118 U. 
S. 370, 6 Sup. Ct. 1064. The case before us 
belongs to the latter class. The legislature 
of Pennsylvania, upon the fullest investiga- 
tion, as we must conclusively presume, and 
upon reasonable grounds, as must be as- 
sumed from the record, has determined that 
the prohibition of the sale, or offering for 
sale, or having in possession to sell, for pur- 
poses of food, of any article manufactured 
out of oleaginous substances or compounds 
other than those produced from unadulter- 
ated milk, or cream from unadulterated 
milk, to take the place of butter produced 
from unadulterated milk, or cream from un- 
adulterated milk, will promote the public 
health, and prevent frauds in the sale of 
suck articles. If all that can be said of this 
legislation is that it is unwise, or unneces- 
sarily oppressive to those manufacturing or 
selling wholesome oleomargarine as an arti- 
cle of food, their appeal must be to the leg- 
islature, or to the ballot-box, not to the ju- 
diciary. The latter cannot interfere without 
usurping powers committted to another de- 
partment of government. It is argued in 
behalf of the defendant that, if the statute 
in question is sustained as a valid exercise 
of legislative power, then nothing stands in 
the way of the destruction, by the legislative 
department, of the constitutional guaranties 
of liberty and property. But the possibility 
of the abuse of legislative power does not 
disprove its existence. That possibility ex- 
ists even in reference to i^owers that are 
conceded to exist. Besides, the judiciaiy 



130 



THE POLICE POWER. 



depart inent is bound not to tiive fft'cct to 
statutory enactments that are j)lainly for- 
bidden by the constitution. This duty, tlie 
court lias said, is always one of extreme del- 
icacy, for, apart from the necessity of avoid- 
ing conflicts betveen co-ordinate bran<-hes 
of the government, whether state or national, 
it is often difficult to determine whether 
such enactments are within the powers gi'ant- 
ed to or possessed by the It^gislature. Nev- 
ertheless, if the incompatibility of the con- 
stitution and the statute is clear or palpable, 
the courts must give effect to the former. 
And such Avould be the duty of the court if 
the state legislature, undei' the pretense of 
guarding the public health, the public mor- 
als, or the public safety, should invade the 
rights of life, liberty, or property, or other 
rights secured by the supreme law of the 
land. 

The o))Jection that the statute is repugnant 
to the clause of the foiuteenth amendment 
forbidding the denial by the state to any 



person within its jurisdiction of tlic 0(Hial 
protection of the laws is untenable. The 
statute places under the same restrictions, 
and subjects to like penalties and burdens, 
all Avho manufacture, or sell, or offer for 
sale, or keep in possession to sell, the arti- 
cles embraced by its prohibitions, thus rec- 
ognizing and preserving tlie principle of 
equality among those engaged in the same 
business. Barbier v. Connolly, supra; Soon 
King V. Crowley, 113 U. S. 703, 5 Sup. Ct. 
730; Railway Co. v. Humes, 115 U. S. rill). 
Sui>. Ct. 110. 

It is also contended that the act of May 
21. 1SS.J, is in conflict with the fourteenth 
amendment in that it deprives the defendant 
of his property without that compen.satiim 
required by law. This contention is without 
merit, as was held in Mugler v. Kansas, su- 
pra . 

T'pon the whole case, we are of opinion 
that there is no error in the judgment, and 
it is therefore attirmed. 



THE POWER OF J'AXATJOX 



181 



AVKSTERN UNION TEL. CO. v. COMMON- 
WEALTH OF MASSACHUSETTS. 

(8 Sup. Ct. 961, 125 IT. S. 530.) 

Supreme Court of the Uuited States. March 19, 
1888. 

A[)peal from the Circuit Court of the Unit- 
ed States for the District of Massachusetts. 

Oeorge S. Hale, Charles W. Wells, and 
AVillard Brown, for appellant. Andrew J. 
Waterman and Henry C. Bliss, for appellee. 

MILLER, J. This is a writ of error to 
the circuit court of the Uuited States for 
the district of Massachusetts. The action 
was commenced in the supreme judicial 
court of Massachusetts, sitting in equitjr, by 
an information on behalf of the common- 
wealth, by its attorney general, at the rela- 
tion of the ti'i^asurer thereof, Alanson W. 
Beard. It was afterwards removed, upon 
motion of the defendant, the Western Un- 
ion TelegTaph Company, into the circuit 
court of the United States. The object of 
the information was to enforce the collec- 
tion of a tax levied by the proper authorities 
of the state upon the telegraph company, 
and to enjoin it from the further operation of 
its telegraph lines within the territorial lim- 
its of the commonwealth until that tax was 
paid. The defendant company is a corpo- 
ration orgranized under the laws of the state 
of New York, having its capital stock divid- 
ed into shares. The tax assessed by the 
treasurer of the commonwealth of Massa- 
chusetts was based upon an estimate of 
Jf 750,952 as the taxable value of the shares 
of the corporation apportioned to that state, 
the rate of taxation having been determined 
for that year, 1885, at $14.14 for and upon i 
each $1,000 of valuation. The mode by 
which this taxable valuation was arrived at 
Avas this: The treasurer ascertained from 
the officers of the teleg-raph company that 
the valuation of its entire capital stock 
was $47,500,000, from Avhich were deducted 
the credits proper to be allowed in deter- 
mining the assessable value, leaviug $38,- 
713,924 as the total valuation of said stock 
liable to taxation. It was then ascertained 
that the total number of miles of line of 
said corporation in all the states and tern- 
tories of this country was 140,052.60, of 
which 143,219.55 were without the limits of 
the commonwealth of Massachusetts, leav- 
ing 2,833.05 miles within its boundaries. 
Taking these figures, the treasurer of the 
state assessed the value of tliat portion of 
the capital stock of this company which, 
under this calculation, would fall Avithin 
the commonwealth of Massachusetts, at the 
sum of $750,952. The amount thus arrived 
at, at the rate of $14.14 upon each $1,000 
of valuation, produced the sum of $10,- 
018.40 as the amount of the tax claimed to 
be due and payable to the treasurer of said 
commonwealth by that corporation. This 
sum Avas demanded of the telegraph com- 



pany, but it I'efused to pay the same. The 
answer of the defendant corporation set up 
that of its 2,833.05 miles of line Avithin the 
state of Massachusetts more than 2,334.55 
miles were over, under, or across post-roads, 
made such by the United States, leaving 
only 498.50 miles not over or along such 
post-roads, ou Avhich the compauy ottered to 
pay the proportion of the tax assessed ac- 
cording to mileage by the state authorities. 
The main ground on Avhich the telegraph 
company resisted the payment of the tax 
alleged to be due, and on which probably 
the case AA^as removed from the state court 
into the circuit court of the Uuited States, 
is that it is a violation of the rights confer- 
red on the company by the act of ,Iuly 24, 
186'3, noAv title 65, §§ 5263-5209, of the Re- 
vised Statutes, The defendant alleges that 
] it had accepted the pi'ovisions of that laAv, 
I and tiled a notification of such accep^ance 
] Avith the postmaster general of the United 
States June 8, 1867. The argument is, 
therefore, that by virtue of section 5263 tlie 
company has a right to exercise its func- 
tions of telegi-aphing over so much of its 
lines as is connected Avith the military and 
post-roads of the United States Avhich have 
been declared to be such by laAV Avithout be- 
ing subject to taxation therefor by the 
state authorities. That section reads as 
foUoAvs: "Sec. 5263. Any telegraph compa- 
uy noAv oi-ganized, or Avhich may hereafter 
be organized under the laAvs of any state, 
shall have the right to construct, maintain, 
and oijerate lines of telegraph through and 
over any portion of the public domain of 
the United States, over and along any of 
the militaiy or post-roads of the United 
States Avhlch have been or may hereafter 
be declared such by law, and over, imder, 
or across the navigable streams or Avaters 
of the United States; but such Hues of tele- 
graph shall be so constructed and main- 
tained as not to obstruct the navigation of 
such streams and waters, or interfere Avith 
tlie ordinary travel on such military or post- 
roads." 

It is urged that this section, upon its ac- 
ceptance by this coiiioration or any of like 
character, confers a right to do the business 
of telegraphing Avhich is transacted over the 
lines so constructed over or along such post- 
roads Avithout liability to taxation by the 
state. The argument is very much pressed 
that it is a tax upon the franchise of the 
company, Avhich franchise being derived 
from the United States by virtue of the 
statute above recited cannot be taxed by a 
state, and counsel for appellant occasionally 
speak of the tax authorized by the laAV of 
Massachusetts upon this as Avell as all other 
corporations doing business Avithin its terri- 
tory, Avhether organized under its laAvs 
or not, as a tax upon their franchises. But 
by Avhatever name it may be called, as de- 
scribed in the laws of Massachusetts, it is 
essentially an excise upon the capital of the 



132 



THE POWER OF TAXATION. 



corpoi-ation. The laws of that couunon- 
wealtli attempt to ascertain the just amount 
which any corporation en^ajjed in business 
within its limits shall pay as a contribution 
to the support of its government upon the 
amount and value of the capital so employed 
by it therein. The telegraph company, 
which is the defendant here, derived its fran- 
chise to be a corporation and to exercise the 
function of telegraphing from the state of 
New York. It owes its existence, its ca- 
pacity to contract, its right to sue and be 
sued, and to exercise the business of teleg- 
raphy, to the laws of the state under which 
it is organized. But the privilege of running 
the lines of its wires "through and over any 
portion of the public domain of the United 
States, over and along any of the military 
or post-roads of the United States, * * * 
and over, under, or across the navigable 
streams or waters of the United States," is 
granted to it by the act of congress. This, 
however, is merely a permissive statute, and 
there is no expression in it which implies 
that this permission to extend its lines along 
roads not built or owned by the United 
States, or over and under navigable streams, 
or over bridges not built or owned by the 
federal government, carries with it any ex- 
emption from the ordinary burdens of tax- 
ation. While the state could not interfere 
by any specific statute to prevent a corpora- 
tion from placing its lines along these post- 
roads, or stop the vise of them after thej^ 
wei-e placed there, nevertheless the company 
receiving the benefit of the laws of the state 
for the protection of its property and its 
rights is liable to be taxed upon its real or 
personal property as any other person would 
be. It never could have been intended by 
the congress of the United States, in con- 
ferring upon a corporation of one state the 
authority to enter the territory of any other 
state and erect its poles and lines therein, to 
establish the proposition that such a com- 
pany owed no obedience to the laws of the 
state into which it thus entered, and was 
under no obligation to pay its fair propor- 
tion of the taxes necessary to its support. In 
the case of Telegraph Co. v. Texas, 105 U. 
S. 4G0, this question was veiy fully consid- 
ered; and while a tax imposed upon every 
telegi'am passing over its lines, whether en- 
tirely within the state or coming from with- 
cut its limits, or going from the state out of 
it, was held to be void so far as i-elated to 
messages passing through more than one 
state, as an interference with or a regulation 
of commerce and with the act of congress 
we have just been considering, it was dis- 
tinctly pointed out that if it could be ascei-- 
tained what telegrams were confined wholly 
within the state, a tax on those might be im- 
posed by it. In that case the chief justice, 
delivering the opinion of the court, said: 
"The Western Union Telegraph Company 
having accepted the restrictions and obliga- 
tions of this provision by congress, occupies 



in Texas the position of an instrument of 
foreign and interstate commerce, and of a 
government agent for the transmission of mes- 
sages on public business. Its property in the 
state is subject to taxation the same as other 
property, and it may undoubtedly be taxed 
in a proper way on account of its occupation 
and its business. The precise question now 
presented is whether the power to tax its 
occupation can be exercised by placing a 
specific tax on each message sent qut of the 
state, or sent by public officers on the busi- 
ness of the United States." Pages 464, 405. 
This authority of the government gives to 
this telegraph company, as well as to all oth- 
ei-s of a similar character who accept its 
provisions, the right to run their lines over 
the roads and bridges which have been de- 
clared to be post-roads of the United States. 
If the principle now contended for be sound, 
every railroad in the country should be 
exempt from taxation because they have all 
been declared to be post-roads; and the same 
reasoning would apply with equal force to 
every bridge and navigable stream through- 
out the land. And if they were not exempt 
from the burden of taxation simply because 
they were post-roads, they would be so re- 
lieved whenever a telegraph company chose 
to make use of one of these roads or bridges 
along or over which to run its lines. It 
was to provide against the recognition of 
such a principle that this court, in the case 
above cited, while holding that telegrams 
themselves coming from without a state 
or sent out of it as a part of their convey- 
ancecould not be taxed by the state specifical- 
ly, nevertheless used the language that "its 
property in the state is subject to taxation 
the same as other propei'ty, and it may un- 
doubtedly be taxed in a proper w'ay on ac- 
count of its occupation and its business." 
A still stronger case in the same direction 
is that of Railroad Co. v. Peniston, 18 Wall. 
5. The plaintiff in that action, the Union 
Pacific Railroad Company, was incorporated 
under a law of the United States. The state 
of Nebraska, under a revenue law passed 
by its legislature, undertook to lay a tax 
upon the property of that company which 
was used or embraced within the limits of its 
territory, upon a valuation of $10,000 per 
mile. The property thus rated and taxed 
consisted of its road-bed, depots, stations, 
telegraph poles, wires, bridges, etc. It will 
be here observed that a part of the valuation 
on which this tax was levied was made up 
of the telegraph poles and wires belonging 
to the company. The .argument w^as pressed 
in that case that the railroad company held 
its franchises from the government of the 
United States, and that its property could 
not be taxed by the state, but this court held 
otherwise, and in the opinion used this lan- 
guage: "It is often a ditficult question 
whether a tax imposed by a state does in 
fact invade the domain of the general gov- 
ernment, or interfere with its opei-ations' to 



INDEPENDEXCE OF FEDERAL AND STATE GOVERXMENTS. 



133 



such an extent, or in such a manner, as to 
render it unwarranted. It cannot be that 
a state tax which remotely affects the eth- 
cient exercise of a federal power is for that 
reason alone inhibited by the constitution. 
To hold that would be to deny to the states 
all power to tax persons or property. Every 
tax levied by a state withdraws from the 
reach of federal taxation a portion of the 
property from which it is taken, and to that 
extent diminishes the subject upon which 
federal taxes may be laid. The states are, 
and they must ever be, co-existent with the 
national government. Neither may destroj^ 
the other. Hence the federal constitution 
must receive a practical construction. Its 
limitations and its implied prohibitions must 
not be extended so far as to desti'oy the nec- 
essary powers of the states, or prevent their 
efficient exercise." Pages 30, 31. The case 
of Thomson v. Railroad, 9 Wall. 579, is then 
cited, Avhere it was held that the property 
of that company was not exempt from state 
taxation, though their raih*oad was a part 
of a system of reads constracted under the 
authority and direction of the United States, 
and lai'gely for the uses and to serve the 
puiposes of the general government. The 
court further said: "A vei-j^ large pi'opor- 
tion of the property within the states is em- 
ployed in execution of the powers of the gov- 
ernment. It belongs to governmental agents, 
and it is not only used, but it is necessary 
for their agencies. United States mails, 
troops, and munitions of war are carried up- 
on almost every railroad. Telegraph lines 
are employed in the national service. So are 
steam-boats, horses, stage-coaches, foundries, 
ship-yards, and multitudes of manufacturing 
establishments. They are the property of 
natural pereons or of coiijorations, who are 
agents or instruments of the general govern- 
ment, and they are the hands by which 
the objects of the government are attained. 
Were they exempt from liability to con- 
tribute to the revenue of the state it is mani- 
fest the state governments would be para- 
lyzed. While it is of the utmost importance 
that all the powers vested by the constitu- 
tion of the United States in the genei-al gov- 
ernment should be preserved in full etti- 
eiency, and while recent events have called 
for the most unembarrassed exercise of many 
of those powers, it has never been decided 
that state taxation of such property is im- 
pliedly prohibited." Page 33. In Bank v. 
Com., 9 Wall. 353, which was a case of a tax 
levied upon the shares of a national bank, 
the same objection in regard to a tax by 
state authority Avas pressed upon the court, 
but this court said that the principle of ex- 
emption of federal agencies from state taxa- 
tion has a limitation growing out of the ne- 
cessity upon which the principle is founded. 
"That limitation is, that the agencies of the 
federal government are only exempted from 
state legislation so far as that legislation 
may interfere with or impair their efficiency 



in performing the functions by which they 
are designed to serve that government. Any 
other rule would convert a principle founded 
alone in the necessitj^ of securing to the gov- 
ernment of the United States the means of 
exercising its legitimate powers into an un- 
authorized and unjustifiable invasion of the 
rights of the states. * * * So of the 
banks. They are subject to the laws of the 
state, and are governed in their daily course 
of business far more by the laAvs of the state 
than of the nation. All their contracts are 
governed and construed by state laAvs. Their 
acquisition and transfer of property, their 
right to collect their debts, and their liability 
to be sued for debts, are all based on state 
law. It is only when the state law incapaci- 
tates the banks fi'om discharging their du- 
ties to the government that it becomes un- 
constitutional. We do not see the remotest 
probability of this, in their being required 
to pay the tax which their stockholders owe 
to the state for the shares of their capital 
stock, when the law of the federal govern- 
ment authorizes the tax." Page 362. The 
tax in the present case, though nominally 
upon the shares of the capital stock of the 
company, is in effect a tax upon that or- 
ganization on account of propex'ty owned and 
used by it in the state of Massachusetts, and 
the proportion of the length of its lines in 
that state to their entire length throughout 
the whole country is made the basis for as- 
certaining the value of that property. We 
do not think that such a tax is forbidden by 
the acceptance on the part of the telegraph 
company of the rights conferred by section 
5263 of the Revised Statutes, or by the com^ 
merce clause of the constitution. 

It is urged against this tax that in ascer- 
taining the value of the stock no deduction is 
made on account of the value of real estate 
and machinery situated and subject to local 
taxation outside of the commonwealth of 
Massachusetts. The report of Examiner 
Fiske, 'to whom the matter was referred to 
find the facts, states that the amount of the 
value of said real estate outside of its juris- 
diction was not clearly shown, but it did ap- 
pear that the cost of land and buildings be- 
longing to the company and entirely without 
that state was over .$3,000,000. In the state- 
ment of the treasurer of the company it is 
said that the value of real estate owned by 
the company within the state of Massachu- 
setts was nothing. Since the corporation was 
only taxed for that proportion of its shares of 
capital stock which was supposed to be tax^ 
able in that state on the calculation above re- 
ferred to, and since no real estate of the cor- 
poration Avas oAvned or taxed within its lim- 
its, we do not see why any deduction should 
be made from the proportion of the capital 
stock which is taxed by its authorities. But 
if this Avere otherAvise Ave do not feel called 
upon to defend all the items and rules by 
Avhich they arrived at the taxable value on 
which its ratio of percentage of t?jcatiou 



134 



THE POWER or TAXATION. 



should be assessed; aud even iu this ease. 
Avhich comes from the circuit court and not 
from that of the state, we thiuk it should ap- 
pear that the corporation is injured Ity some 
principle or rule of the law not eciually appli- 
cable to other objects of taxation of like char- 
acter. Since, therefore, this statute of Mas- 
sachusetts is intended to govern the taxation 
of all corporations therein, and doin.;; business 
■within its territory, whether organized under 
its own laws or those of scmie other state, 
and since the pi'incii)le is one which we can- 
not pi'onounce to be an unfair or an unjust 
one, Ave do not feel called upon to hold the 
tax A'oid, because we mijiht have adopted a 
different system had we been called upon to 
ac-complish the same result. It is very clear 
to us, when wo consider the limited territorial 
extent of Massachusetts, and the proportion 
of tJie len.iith of the lines of this company iu 
that state to its business done therein. Avith 
its sreat poi)ulation and business actiA'ity. 
that the rule adopted to ascertain the amount 
of the value of the capital en,i;a.iied in that 
business Avithin its boundaries, on which the 
tax should be assessed, is not unfavorable to 
the corporation, and that the details of the 
method by Avliich this was determined have 
not exceeded the fair ranue of le.yislatiA'e dis- 
cretion. We do not think that it follows nec- 
essarily, or as a fair argument from the facts 
stated in the case, that theiv was injustice in 
the a.><sessment for taxation. The result of 
these views is. that the tax assessed aj;ainst 
the plaintiff in error is a A-alid tax; that the 
judiiment of the court below, "'that the sum 
claimed by the plaintiff (below) to be due for 
taxes. to-Avit. .*t;i(t.(;is.4t). be paid to said state 
by said corporation. Avith interest thereon," is 
without erroi-, and so much of said judgment 
is hereby affirmed. 

The det-ree or judgment. howev(»r, proceeds 
and aAvards an injunction aj;ainst the com- 
pany in the folloAvin^- lanjjua.iie. added to that 
above extracted: "and that an injunction shall 
be issued out of and \uu1er the seal of this 
court, directed to said corporation, and its offi- 
cers, af;ents, and servants, commandinji- them 
and each of them absolutely to desist and I'e- 
frain from the further prosecution of the 
business of said corporation until said sums 
due to the said commonwealth for taxes, as 



I aforesaid, shall have been fully paid, with in- 
terest and costs, unless the said sum is paid 
by said defendant within thirty days from 
the entry hereof." The effect of this injunc- 
tion, if obeyed, is to utterly suspend the busi- 
ness of the telej;raph company, and defeat all 
its operations Avithin the state of ^Nlassachu- 
setts. The act of congress says that the com- 
pany accepting its provisions "shall luiA'e the 
right to construct, maintain, aud operate lines 
of telegi'aph through and over any portion of 
the public domain of the United States, over 
and along an.A' of the military or post-roads of 
the United States." It is found in this case 
that 2.ri?A.~>o miles of the companj-'s line, out 
of 2..So.'5.(>."') on AA'hich this tax is assessed, are 
along and oA'er such post-roads, and of course 
the injunction prohibits the operation of the 
defendant's telegi-aph over these lines, nearly 
all it has in the state. If the congress of the 
United States had authority to say that the 
company might construct and operate its tel- 
egraph over these lines, as Ave have repeatedly 
held it had, the state can have no authority to 
say it shall not be done. The injunction in 
this case, though ordered by a circuit court 
of the United States, is only granted by vir- 
tue of section ."14 of chapter i;i of the I'ublic 
Statutes of Massachusetts. If this statute is 
A'oid, as Ave think it is, so far as it prescribes 
this injunction as a remedy to enforce the 
collection of its taxes by the decree of the 
court aAvarding it, the injunction is erroneous. 
In holding this portion of section r»4 of chap- 
ter lo of the Massachusetts Statutes to be void 
as ai)plicable to this case, Ave do not deprive 
the state of the power to assess and collect 
the tax. If a resort to a judicial proceeding 
to collect it is deemed exijedient, theie re- 
mains to the couit all the ordinai'y means of 
enforcing its judgment — executions, seiiues- 
tration, and any otlier appropriate remedy in 
chancery. 

That part of the decree of the circuit court 
Avliich aAA-ards the injunction is. therefore, re- 
A'ersed. and the case is remanded to that court 
for further proceedings in conformity to this 
opinion. 

BRADLEY, J., Avas not present at the argu- 
ment of this case, and took no part in its de- 
cision. 



iJMlTATJON.S IMPOSED BY FEDERAL CONSTITUTION. 



135 



HYLTON V. UNITED STATES. i 

(3 Dall. 111.) 

Supreme Court of the Uuitecl States. Feb. 
Term, 3Ty(J. 

This was an action of debt instituted in tlie 
name of tlie United States against Daniel 
Hylton to recover the penalty imposed by Act 
€ong. June 5, 1794, for failure to enter and 
pay the duty on carriages for the conveyance 
of persons, kept by the defendant for his 
own use. The lower court having been 
equally divided, defendant confes.sed judg- 
ment, by agreement of the parties, and 
brought error. Athrmed. 

Mr. Lee, U. S. Atty. Gen., and Mr. Hamil- 
ton, the late secretary of the treasury, in sup- 
port of the tax. Mr. Campbell, of the Vir- 
ginia district, and Mr. Ingersoll, Atty. Gen. 
of Pennsylvania, in opposition. 

Mr. Justice CHASE delivered the opinion 
of the court. 

By the case stated, only one question is sub- 
mitted to the opinion of this court; — whether 
the law of congress, of the .Itli of .lune, 1794, 
entitled, "An act to lay duties upon carriages, 
for the conveyance of persons," is unconstitu- 
tional and void? 

The principles laid down, to prove the 
above law void, are these: Tliat a tax on 
carriages, is a direct tax, and, therefore, by 
the constitution, must be laid according to 
the census, directed by the constitution to be 
taken, to ascertain the number of represen- 
tatives from eacli state: And that the tax in 
question, on carriages, is not laid by that rule 
of apportionment, but by the rule of uniformi- 
ty, prescribed by the constitution, in the case 
of duties, imposts, and excises; and a tax on 
carriages, is not within either of those de- 
scriptions. 

By the 2d. section of the 1st. article of the 
constitution, it is provided, that direct taxes 
shall be apportioned among the several 
states, according to their numbers, to be de- 
termined by the rule prescribed. 

By the 9th section of the same article, it 
is further provided, that no capitation, or 
other direct tax, shall be laid, unless in pro- 
portion to the census, or enumeration, before 
directed. 

By the 8th section of the same article, it 
was declared, that congress sliall have pow- 
er to lay and collect taxes, duties, imiwsts, 
and excises; but all duties, imposts, and ex- 
cises, shall be uniform throughout the Unit- 
ed States. 

As it Avas incumbent on tlie plaintitf's coun- 
sel in error, so they took great pains to prove, 
that the tax on carriages was a direct tax; 
but they did not satisfy my mind. I think, 
at least, it may be doubted; and if I only 
doubted, I should affirm the judgment of the 
circuit court. The deliberate decision of the 
national legislature, (who did not consider a 



1 Opinions of Mr. Justice Patterson, Mr. Jus- 
tice AVilson, and Mr. Justice Iredell omitted. 



tax on carriages a direct tax, but thought it 
was within the description of a dut:^') would 
determine me, if the case was doubtful, to 
receive the construction of the legislature; 
But I am inclined to think, that a tax on 
carriages is not a direct tax, within the let- 
ter, or meaning, of the constitution. 

The great object of the constitution was, 
to give congress a power to lay taxes, ade- 
quate to the exigencies of government; but 
they were to observe two rules in imposing 
them, namely, the rule of uniformity, Avhen 
they laid duties, imposts, or excises; and the 
rule of apportionment, according to the cen- 
sus, -s-^'hen they laid any direct tax. 

If there are any other species of taxes that 
are not direct, and not included within the 
words "duties, imposts, or excises," they may 
be laid by the rule of uniformity, or not; as 
congress shall think proper and reasonable. 
If the framers of the constitution did not con- 
template other taxes than direct taxes, and 
duties, imposts, and excises, there is great 
inaccuracy in their language. — If these four 
species of taxes were all that were meditat- 
ed, the general power to lay taxes was un- 
necessary. If it was intended, that congress 
should have authority to lay only one of the 
four above enumerated, to wit, 'direct taxes, 
by the rule of apportionment, and the other 
three by the rule of uniformity, the expres- 
sions would have run thus: "Congress shall 
have power to lay and collect direct taxes, 
and duties, imposts, and excises; the first 
shall be laid according to the census; and 
the three last shall be uniform throughout 
the ITnited States." The power, in the Sth 
section of Ihe 1st article, to lay and collect 
taxes, included a power to lay direct taxes, 
(whether capitation, or any other) and also 
duties, imposts, and excises; and every oth- 
er species or kind of tax whatsoever, and 
called by any other name. Duties, imposts, 
and excises, were enumerated, after the gen- 
eral term "taxes," only for the purpose of 
declaring, that they were to be laid by the 
rule of uniformity. I consider the constitu- 
tion to stand in this manner. A general 
power is given to congress, to lay and collect 
taxes, of every kind or nature, without any 
restraint, except only on exports; but two 
rules are prescribed for their government, 
namely, uniformity and apportionment: Three 
kinds of taxes, to wit, duties, imposts, and ex- 
cises bj^ the first rule, and capitation, or 
other direct taxes, bj^ the sec-ond .rule. 

I believe some taxes may be both direct 
and indirect at the same time. If so, Avould 
congress be prohibited from laying such a 
tax. because it is partly a direct tax? 

The constitution evidently contemplated no 
taxes as direct taxes, but only such as con- 
gress could lay in proportion to the census. 
The rule of apportionment is only to be adopt- 
ed in such cases where it can reasonably ap- 
ply; and the subject taxed, must ever deter- 
mine the application of the rule. 

If it is proposed to tax any specific article 



136 



THE POWER OF TAXATION. 



by the rule of apportionment, and it would 
evidently create great inequality and injus- 
tice, it is unreasonable to say, that the con- 
stitution intended such tax should be laid by 
that rule. 

It appears to me, that a tax on carriages 
cannot be laid by the rule of apportionment, 
without very great inequality and injustice. 
For example: Suppose two states, equal in 
census, to pay 80,000 dollars each, by a tax 
on carriages, of 8 dollars on every carriage; 
and in one state there are 100 carriages, and 
in the other 1000. The owners of carriages 
in one state, would pay ten times the tax of 
owners in the other. A. in one state, would 
pay for his cai-riage 8 dollai-s, but B. in the 
other state, would pay for his carriage, SO 
dollars. 

It was argued, that a tax on carriages was 
a direct tax, and might be laid according to 
the rule of apportionment, and (as I under- 
stood) in this manner: Congress, after de- 
termining on the gross sum to be raised was 
to apportion it, according to the census, and 
then lay it in one state on carriages, in an- 
other on horses, in a third on tobacco, in a 
fourth on rice; and so on.— I admit that this 
mode might be adopted, to raise a certain 
sum in each state, according to the census, 
but it would not be a tax on carriages, but 
on a number of specific articles; and it 
seems to me, that it would be liable to the 
same objection of abuse and oppression, as 
a selection of any one article in all the states. 

I think, an annual tax on carriages for the 
conveyance of persons, may be considered as 
within the power granted to congress to lay 



duties. The term "duty," is the most com- 
prehensive next to the generical term "tax"; 
and practically in Great Britain, (whence we 
take our general ideas of taxes, duties, im- 
posts, excises, customs. «&c.) embraces taxes 
on stamps, tolls for passage, &c. &c. and is 
not confined to taxes on importation only. 

It seems to me, that a tax on expence is an 
indirect tax; and I think, an annual tax on 
a carriage for the conveyance of persons, is 
of that kind; because a carriage ,is a con- 
sumeable commodity; and such annual tax 
on it, is on the expence of the owner. 

I am inclined to think, but of this I do not 
give a judicial opinion, that the direct taxes 
contemplated by the constitution, are only 
two, to wit, a capitation, or poll tax, simply, 
without regard to property, profession, or any 
other circumstance; and a tax on land. — 1 
doubt whether a tax, by a general assess- 
ment of personal property, Avithin the United 
States, is included within the term "direct" 
tax. 

As I do not think the tax on carriages is a 
direct tax, it is unnecessary, at this time, 
for me to determine, whether this court, con- 
stitutionally possesses the power to declare 
an act of congress void, on the ground of its 
being made contrary to, and in violation of, 
the constitution; but if the court have such 
power, I am free to declare, that I will never 
exercise it, but in a very clear case. 



Mr. Justice PATTERSON, Mr. Justice 
WILSON, and Mr. Justice IREDELL, con- 
cur. 



LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 



Ib7- 



POLLOCK V. FARMERS' LOAN & TRUST 
(JO. et al.i 

(15 Sup. Ct. 673, 157 U. S. 429.) 

Supreme Court of the United States. April 8, 
1895. (No. 893.) 

Appeal from the Circuit Court of the Unit- 
ed States for the Southern District of New 
York. 

This was a bill filed by Charles Pollock, a 
citizen of the state of Massachusetts, on be- 
half of himself and all other stockholders of 
the defendant company similarly situated, 
against the Farmers' Loan & Trust Company, 
a corporation of the state of New York, and 
its directors, alleging that the capital stock 
of the corporation consisted of $1,000,000, di- 
vided into 40,000 shares of the par value of 
?25 each; that the company was authorized 
to invest its assets in public stocks and 
bonds of the United States, of individual 
states, or of any incoiioorated city or county, 
or in such real or personal securities as it 
might deem proper; and also to take, accept, 
and execute all such trusts of every descrip- 
tion as might be committed to it bj' any per- 
son or persons or any corporation, by grant, 
assignment, devise, or bequest, or by order 
of any court of record of New York, and to 
receive and take any real estate which might 
be the subject of such trust; that the prop- 
erty and assets of the company amounted to 
more than $5,000,000, or which at least .?1,- 
000,000 was invested in real estate owned by 
the company in fee, at least $2,000,000 in 
bonds of the city of New York, and at least 
$1,000,000 in the bonds and stocks of other 
corporations of the United States; that the 
net prolits or income of the defendant com- 
pany during the year ending December 31, 
1894, amounted to more than the sum of 
$300,000 above its actual operating and busi- 
ness expenses, including losses and interest 
on bonded and other indebtedness; that from 
its real estate the company derived an in- 
come of $50,000 per annum, after deducting 
all county, state, and municipal taxes; and 
that the company derived an income or profit 
of about $60,000 per annum from its invest- 
ments in municipal bonds. 

It was further alleged that under and by 
virtue of the powers conferred upon the com- 
pany it had from time to time taken and exe- 
cuted, and was holding and executing, nu- 
merous trusts committed to the company by 
many persons, copartnerships, unincorporated 
associations, and corporations, by grant, as- 
signment, devise, and bequest, and by orders 
of various courts, and that the company now 
held as trustee for many minors, individuals, 
copartnerships, associations, and corpora- 
tions, resident in the United States and else- 
where, many parcels of real estate situated 
in the various states of the United States, 
and amounting in the aggregate, to a value 



1 Opinion of Mr. .Justice Field and dissenting 
opinion of Mr. Justice Harlan are omitted. 



exceeding $5,000,000, the rents and income of 
which real estate collected and received by 
said defendant in its fiduciary capacity annu- 
ally exceeded the sum of $200,000. 

The bill also averred that complainant was, 
and had been since May 20, 1892, the OAvner 
and registered holder of 10 shares of the 
capital stock of the company, of a value ex- 
ceeding the sum of $5,000; that the capital 
stock was divided among a large number of 
different persons, who, as such stockholders, 
constituted a large body; that the bill was 
filed for an ob.iect common to them all, and 
that he therefore brought suit not only in 
his own behalf as a stockholder of the com- 
pany, but also as a representative of and on 
behalf of such of the other stockholders simi- 
larly situated and interested as might choose- 
to intervene and become parties. 

It was then alleged that the management 
of the stock, property, affairs, and concerns 
of the company was committed, imder its 
acts of incorporation, to its directors, and 
charged that the company and a majority of 
its directors claimed and asserted that under 
and by virtue of the alleged authority of the 
provisions of an act of congress of the Unit- 
ed States entitled "An act to reduce taxation, 
to provide revenue for the government, and 
for other purposes," passed August 15, 1894, 
the company was liable, and that they in- 
tended to pay, to the United States, before 
July 1, 1895, a tax of 2 per centum on the net 
profits of said company for the year ending 
December 31, 1894, above actual operating 
and business expenses, including the income 
derived from its real estate and its bonds of 
the city of New York; and that the directors- 
claimed and asserted that a similar tax must 
be paid upon the amount of tlie incomes, 
gains, and profits, in excess of $4,000, of all 
minors and others for whom the company 
was acting in a fiduciary capacity. And, fur- 
ther, that the company and its directors had 
avowed their intention to make and file with 
the collector of internal revenue for the Sec- 
ond district of the city of New York a list, 
return, or statement showing the amount of' 
the net income of the company received dur- 
ing the year 1894, as aforesaid, and likewise 
to make and render a list or return to said 
collector of internal revenue, prior to that 
date, of the amount of the income, gains and. 
profits of all minors and other persons hav- 
ing incomes in excess of $3,500, for whom the 
company was acting in a fiduciary capacity. 

The bill charged that the- provisions in re- 
spect of said alleged income tax incorporated 
in the act of congress were unconstitutional, 
null, and void, in that the tax was a direct 
tax in respect of the real estate held and 
OAvned by the company in: its own right and 
in its fiduciary capacity as aforesaid, by be- 
ing imposed upon the rents, issues, and prof- 
its of said real estate, and was likewise a di- 
rect tax in respect of its personal property 
and the personal property held by it for oth- 
ers for whom it acted . in., its fiduciary capac- 



1-^8 



THE I'owKi; or taxation, 



ity as aforesaid, which direct taxes were not. 
in and by said act, apportioned anions the 
several states, as required by section '2 of ar- 
ticle 1 of the constitution; and that, if the 
income tax so incorporated in the act of con- 
gress aforesaid were held not to be a direct 
tax, nevertheless its provisions were iincon- 
stitntioual, null, and void, in that they were 
not uniform throughout the United States, as 
required in and by section 8 of article 1 of 
the constitution of the I'nited States, upon 
many jironnds and in many particulars spe- 
cifically set forth. 

The bill further charged that the income- 
tax provisions of the act were likewise im- 
constitutional. in that they imposed a tax on 
incomes not taxable under the constitution, 
and likewise income derived from the stfx-ks 
and bonds of the states of the T'nited States, 
and counties and municipalities therein, 
which stocks and bonds are among the meass 
and instrumentalities employed for carrying 
on their i-espective governments, and are not 
proper subjects of the taxing ]iower of con- 
gress, and which stales and their counties 
and muncipalities are independent of the gen- 
eral government of the United States, and 
the respective stocks and bonds of which 
are, together with the power of the states to 
borrow in any form, exempt from fedei'al 
taxation. 

Other grounds of unconstitutionality were 
assigned, and the violation of articles 4 and 
5 of the constitution asserted. 

The bill further averred that the suit was 
not a collusive one. to confer on a court of 
the United States jurisdiction of the case, of 
which it would nor otherwise have cogni- 
sance, and that complainant had re(inested 
the company and its directors to omit and 
I'efuse to pay said income tax. and to con- 
test the constitutiiinality of said act. and to 
refrain from voluntarily making lists, returns, 
and statements on its own behalf and on be- 
half of the minors and other persons for 
Avhom it was acting in a fiduciary capacity, 
and to apply to a court of competent jurisdic- 
tion to determine its liability under said act; 
but that the company and a majority of its 
directors, after a meeting of the directors, at 
which the matter and the request of com- 
plainant were formally laid before them for 
action, had refused, and still refuse, and in- 
tend omitting, to comply with complainant's 
demand, and had resolved and detei-mined 
and intended to comply with all and singular 
the provisions of the said act of congress, 
and to pay the tax upon all its net profits or 
income as aforesaid, including its rents from 
real estate and its income from municipal 
bonds, and a copy of the refusal of the com- 
pany was annexed to the complaint. 

It was also alleged that if the company 
and its directors, as they proposed and had 
declared their intention to do, should pay the 
tax out of its gains, income, and profits, or 
out of the gains, inionie, and piofits of the 
property held by it in its fiduciary capacity. 



I they will diminish the assets of the company 
and lessen the dividends thereon and the 

I value of the shares; that voluntary compli- 
ance with the income-tax ])rovisions would 

j expose the company to a multiplicity of suits, 
not only by and on behalf of its numerous 
shareholders, but by and on behalf of numer- 

; ous minors and othei's for whom it acts in a 

I fiduciary capacity, and that such numerous 
suits would work irieparable injury to the 
business of the company, and subject it to 
great and irreparable damage, and to liabil- 
ity to the beneficiaries aforesaid, to the ir- 
reparable damage of complainant and all its 

> shaieholders. 

The bill further averred that this was a 
suit of a civil nature in ecputy: that the mat- 
ter in dispute exceeded, exclusive of costs, 
the sum of iFr),(iO(), and arose under the con- 
stitution or laws of the Ignited States; and 

' that there was furthermore a controversy be- 

; tween citizens of different states. 

I The prayer was that it might be adjudged 

1 and decreed that the said j^rovisions known 

' as the income tax incorporated in .said act ot 
congress passed August l.">. 1S94, are uncon- 
stitutional, null, and void; that the defend- 

! ants be restrained from voluntarily comply- 

■ ing with the provisions of saiu act. and mak- 
ing the lists, returns, and statements above 
referred to, or paying the tax aforesaid; and 
foi' general relief. 

Tlie defendants demurred on the ground of 
want of equity, and. the cause having been 
brought on to be heard upon the bill and de- 
nnu'rer thereto, the demurrer was sustained, 
and the bill of complaint dismissed, with 
costs, whereupon the record recited that the 
constitutionality of a law of the United 
States was diawn in question, and an appeal 
was allowed directly to this court. 

An absti-act of the act in question will be 
found in the margin. 2 

2 By sections 127-37 inclusive of the act of con- 
gress cntitlcil "An act to reduce taxation, to 
providi> revciHio for the government, and for 
other purpcscs." received by the president 
August 5"). 18U4. and which, not having been 
returned by him to the house in which it origi- 
nated within the time prescribed by the con- 
stitution of the T'nited States. l)ec;une a law 
without approval (2S Stat. ."()!). c. .■>4!)). it was 
provided tliat from and iiftei- .lanuuiy 1. IS!)"), 
and until .Tanuary 1. 1!MK). "there shall be as- 
sessed, levieil. collected, and paid annually up(m 
the gains, profits, and income received in the 
preceding calendar year by every citizen of the 
Unitc'l States, whether residing at liome or 
abroad, and every person residing therein, 
whether said gains, profits, or income be de- 
rived from any kind of ])roiierty. rents, inter- 
est, dividends, or salaries, or from any profes- 
sion, trade, enioloynient. or vocation carried on 
in the United States or elsewhere, or from any 
other sour<-e whatever, a tax of two per centum 
on the amount so deriv(Nl over and above four 
thousand dollars, and :i like tax shall l)e levieil. 
collected, and paid annually upon the gains, 
profits, and income from all projierty owned and 
of every business, trade, or profession carried 
on in the United States by persons residing 
without the United States. ♦ * * 

"Sec. 28. That in estimating the gains, profits, 
and income of any person there shall be in- 



UMITxlTIOXS IMPOSED BY FEDELIAL CONSTITUTION. 



139 



By the third chiuse of section 2 of article 
1 of tlie constitution it was provided: '"Ilepre- 
sentatives and direct taxes shall be appor- 
tioned among the several states which may 
be included within this Union, according to 
their respective numbers, which shall be de- 
termined by adding to the whole number of 
free persons, including those bound to service 
for a term of years, and excluding Indhuis 
not taxed, three-fifths of all other persons." 
This was amended by the second section of 
the fourteenth article, declared ratified July 
28, 1868, so that the whole number of per- 
sons 'n each state should be counted. In- 



cluded all income derived from interest upon 
note.s. bonris. and otlier secnrities. excei)t such 
bond.s of the iTnited States the principal and in- 
terest of which are by the. law of their issuance 
exempt from all federal taxation; profits real- 
ized within tlip year from sales of real estate 
purchased within two years previous to the close 
of the year for which income is estimated: in- 
teiest received or accrued upon all notes, 
honds. mortgages, or other forms of indebted- 
ness bearinj;: interest, whether paid or not. if 
prood and collectible, less the interest which has 
1)ecome due from said person or which has been 
t)ald by him during the year: the amount of all 
premium on bonds, notes, or coupons: the 
amount of sales of live stock, sufjar, cotton, 
wool, butter, cheese, pork, beef, mutton, or oth- 
er meats, hay. and grain, or other vegetable or 
other prodxictions. beins the growth or prodtice 
of the estate of such person, less the amount ex- 
pended in the purchase or production of said 
stfick or produce, and not including any part 
thereof consumed directly by tht' family: money 
and the value of all persona! property acquired 
by gift or inheritance; all other gains, profits, 
and income derived from any source whatever 
except that portion of the salary, compensation, 
or pay received for services in the civil, mili- 
tary, naval, or other service of the United 
States, including senators, representatives, and 
delegates in congress, from which the tax has 
been deducted, and except that portion of any 
salary upon which the employer is required by 
law to withhold, and does withhold the tax and 
j)ays the same to the officer authorized to receive 
it. In computing incomes the necessary ex- 
jicnses actually incurred in carrying on any busi- 
ness, occupation, or profession shall be deduct- 
ed and also all interest due or paid within the 
year by such person on existing indebtedness. 
And all national, state, county, school, and 
municipal taxes, not includins:: those assessed 
again.st local benefits, paid within the year shall 
be deducted from the gains, profits, or income 
of the person who has actually paid the same, 
whether such person be owner, tenant, or mort- 
Sfagor: also losses actnall.v sustained during 
the year, incurred in trade or arising from 
firths, storms, or shipwreck, and not compen- 
sated for by insurance or otherwise, and debts 
ascertained to be worthless, hut excluding: all 
estimated depreciation of vabns and losses with- 
in the year on sales of real estate purchased 
within two years previous to the year for which 
income is estimated: provided, that no de- 
duction shall be made for any amount jjaid <iut 
for new bnildinprs. permanent imi)rovements. 
or betternnmts. made to increase the value of 
any property or estate: provided further, that 
only one deduction of four thousand dollars 
shall be made from the aggregate income of 
all the members of any family, composed of one 
or both parents, and one or more minor children, 
or husband and wife; that guardians shall be 
allowed to make a deduction in favor of each 
and every ward, except that in case where two 
or more wards are comprised in one family, 
and have joint property interests, the aggregate 
dedxiction In their favor shall not exceed four 



dians not taxed exchuled, and the provision, 
as thus amended, remains in force. 

The actual enumenition was prescribed to 
be made within three years after the first 
meeting of congress, and within every sub- 
sequent term of ten years, in such manner as 
should be directed. 

Section. 7 requires "all bills for raising 
revenue shall originate in the house of repre- 
sentatives." 

The first clause of section 8 reads thus: 
"The congress shall have power to lay and 
collect taxes, duties, imposts and excises, to 
pay the debts and provide for the common 

thousand dollars: and provided further, that in 
ca.ses where the salary or other compensation 
paid to any person in the employment or serv- 
ice of the United States shall not exceed the 
' rate of four thousand dollai-s per annum, or 
I shall be by fees, or uncertain or iri-cgular in 
! the amount or in the time during which the same 
j shall have accrued or been earned, such salary 
I or other compensation shall be included in esti- 
i mating the annual gains, profits, or income of 
the person to whom the same shall have been 
paid, and shall include that portion of any in- 
come or salary upon which a tax has not "been 
paid by the employer, where the employer is re- 
! ouired by law to pay on the excess over four 
I thousand dollars: provided also, that in com- 
i puting the income of any person, corporation, 
I company, or association there shall not be in- 
cluded the amount received from any corpora - 
; tion, company, or association as dividends up- 
on the stock of such corporation, comiiany. or 
association if the tax of two per centum has 
been paid upon its net profits by said corpora- 
tion, company, or association as required by thia 
i act. 

•'Sec. 29. That it shall be the duty of all 
; persons of lawful age having an income of 
more than three thousand five hundred debars 
for the taxable year, computed on the basis 
j herein prescribed, to make and render a list or 
retiu'n. on or before the day provided by law. 
in such form and manner as may be directe(l 
by the commissioner of internal revenue, with 
the approval of the secretary of the treasury, 
to the collector or a deputy collector of the dis- 
trict in which they reside, of the amount of 
their income, gains, and profits, as aforesaid; 
and all suardians and trustees, executors, ad- 
ministrators, agents, receivers, and all per- 
sons or corporations acting in any fiduciary 
capacity, shall make and render a list or re- 
turn, as aforesaid, to the collector or a deputy 
collector of the district in which such person 
or corporation acting: in a fiduciary capacity re- 
sides or docs business, of the amount of in- 
come, gains, and profits of any minor or person 
for whom they act. but persons bavins h^ss 
than three thousand five hundred dollars income 
are not required to make such report; and the 
collector or deputy collector, shall require every 
list or return to be verified by the oath or af- 
lirniati(Ui of the party rend(>rin,a: it. and may 
inci-i'ase the amount of any list or return if he 
has )-eason to believe that the same is understat- 
ed: and in case any such person bavins a tax- 
able income shad neslect or refuse to make and 
render such list and return, or shall render a 
willfully false or fraudulent list or return, it 
shall be the duty of the collector or deputy col- 
lector, to make such list, according to the best 
infornuition he can obtain, by the examination 
of such person, or any other evidence, and to add 
fifty i)er centum as a penalty to the amount of 
the tax due on such list in all cases of willful 
neslect (tr i-efusal to make and render a list or 
return: and in all cases of a willfully false or 
fraudulent list or return having been rendered to 
add one hundred per centum as a penalty to the 
amount of tax ascertained to be due, the tax 



140 



THE PO^\ER OF TAXATION. 



defence and general welfare of the United 
States; but all duties, imposts and excises 
shall be uniform throughout the United 
States." And the third clause thus: "To 
regulate commerce with foreign nations, and 
among the several states, and with the In- 
dian tribes." 

The fourth, fifth, and sixth clauses of sec- 
tion 9 are as follows: 

"No capitation, or other direct, tax shall be 
laid, unless in proportion to the census or 
enumeration hereinbefore directed to be 
taken. 

and the additions thereto as a penalty to be as- 
sessed and collected in the manner provided for 
in other cases of willful neglect or refusal to 
render a list or return, or of rendering a false 
or fraudulent return." A proviso was added 
that any person or corporation might show that 
he or its ward had no taxalile income, or that the 
same had been paid elsewhere, and the collector 
might exemot from the tax for that year. "Any 
person or company, cori>oration, or association 
feeling aggrieved by the decision of the deputy 
collector, in such cases may appeal to the col- 
lector of the district, and his decision thereon, 
unless reversed by tlie commissioner of internal 
revenue, slinl' be final. If dissatisfied with the 
decision of the collector such person or corpora- 
tion, company, or association may submit the 
case, with all the paners, to the commissioner 
of internal revenue for his decision, and may 
furnish the testimony of witnesses to prove any 
relevant facts having served notice to that ef- 
fect upon the commissioner of internal revenue, 
as herein prescribed." Provision was made 
for notice of time and place for taking testi- 
mony on both sides, and that no penalty should 
be assessed until after notice. 

By section 30, the taxes on incomes were 
made payable on or before July Ist of each 
year, and 5 per cent, penalty levied on taxes un- 
paid, and interest. 

By section HI, any non-resident misrht re- 
ceive the benefit of the exemptions provided for, 
and "in computing income he shall include all in- 
come from every source, but unless he be a citi- 
zen of the United States he shall only pay on 
that part of the income which is derived from 
any sonrce in the United States. In case such 
non-resident fails to file such statement, the col- 
lector of each district shall collect the tax on 
the income derived from property situated in his 
district, subject to income tax. making no al- 
lowance for exemptions, and all property be- 
longing to such non-resident shall be liable to 
distraint for tax: provided, that non-resident 
corporations shall be subject to the same laws 
as to tax as resident corporations, and the col- 
lection of the tax shall be made in the same 
manner as provided for collections of taxes 
against non-resident persons." 

"Sec. 32. That there shall be assessed, levied, 
and collected, except as herein otherwise provid- 
ed, a tax of two per centum annually on the 
net profits or income a1:ove actual operating and 
business expenses, including expenses for mate- 
rials purchased for manufacture or bought for 
resale, losses^ and interest on bonded and other 
indelitedness of all banks, banking institutions, 
trust companies, saving institutions, fire, ma- 
rine, life, and other insurance companies, rail- 
road, canal, turnpike, canal navigation, slack 
water, telephone, telegranh, express, electric 
light, gas, water, street railway companies, and 
all other corporations, companies, or associa- 
tions doing business for profit in the United 
States, no matter how created and organized 
but not including partnerships." 

The tax is made payable "on or before the 
first day of July in each year; and if the presi- 
dent or other chief ofiicer of any corporation, 
company, or association, or in the case of any 



"No tax or duty shall be laid on articles 
exported from any state. 

"No preference shall be given by any regu- 
lation of commerce or revenue to the ports 
of one state over those of another; nor shall 
vessels bound to, or from, one state, be obli- 
ged to enter, clear, or pay duties in another." 

It is also provided by the second clause of 
section 10 that "no state shall, without the 
consent of the congress, lay any imposts or 
duties on imports or exports, except what 
may be absolutely necessary for executing 
its inspection laws"; and, by the third clause, 



foreign corporation, company, or association, the 
resident manager or agent shall neglect or refuse 
to tile with the collector of the inl<'rnal revenue 
»listrict in which said corporati.'.n, company, or as- 
sociation shall be located or l)e engaged in busi- 
ness, ii statement verified by his oath or affirma- 
tion, in such form as shall be prescrilied by 
the commissioner of internal revenue, with the 
apiiroval of the secretary of the treasury, show- 
ing the amount of net profits or income received 
by said corporation, conniany. or association 
during the whole calendar year last preceding 
the date of filing said statement as hereinafter 
required, the corjioration. company, or associa- 
tion making default shall forfeit as a penalty 
the sum of one thousand dollars and two per 
centum on the amount of taxes due, for each 
month until the same is paid, the payment of 
said penalty to be enforced as provided in other 
cases of neclect and "refusal to make return 
of taxes under the internal revenue laws. 

"The net profits or income of all corpora- 
tions, companies, or associations shall include 
the amounts ]iaid to shareholders, or carried to 
the account of any fund, or used for construc- 
tion, enlargement of plant, or any other ex- 
penditure or investment paid from the net an- 
nual profits made or acquired by said corpora- 
tions, companies, or associations. 

"That nothing herein contained shall apply 
to states, counties, or municipalities: nor to 
corporations, com]>anies. or associations or- 
ganized and conducted solely for charitable, re- 
ligious, or educational purposes, including fra- 
ternal beneficiary societies, orders, or associa- 
tions operating upon the lodge system and pro- 
viding for the payment of life, sick, accident, 
and other benefits to the members of such so- 
cieties, orders, or associations and dependents of 
such memuers; nor to the stocks, shares, fvmds, 
or securities held by any fiduciary or trustee 
for charitable, religious, or educational pur- 
poses: nor to budding and loan associations or 
companies which make loans only to their share- 
holders; nor to such savings banks, savings in- 
stitutions or societies as shall, first, have no 
stockholders or members except depositors ami 
no capital except deposits; secondly, shall not 
receive deposits to an aggregate amount, in any 
one year, of more than one thousand dollars 
from the same depositor: thirdly, shall not al- 
low an accumulation or total of deposits, by any 
one depositor, excecnling ten thousand dollars; 
fourthly, shall actually divide and distribute 
to its depositors, ratably to deposits, all the 
earnings over the necessary and proper expenses 
of such bank, institution, or society, excejit 
such as shall be applied to surplus; fifthly, shall 
not possess, in any form, a surplus fund ex- 
ceeding ten per centum of its aggregate depos- 
its; nor to such savings banks, savings institu- 
tions, or societies composed of members who 
do not participate in the profits thereof and 
which pay interest or dividends only to their 
depositors; nor to that jiart of the business 
of any savings bank, institution, or other simi- 
lar association having a capital stock, that is 
conducted on the mutual plan solely for the 
benefit of its depositors on such plan, and which 
shall keep its accounts of its business conducted 



LIMITATIONS IMPOSED BY FEDERAL COXSTITUTIOJT. 



141 



that "no state shall, without the consent of 
•congress, lay any duty of tonnage." 

The fli-st clause of section 9 provides: "The 
migi-ation or importation of such persons as 
any of the states now existing shall think 
proper to admit, shall not be prohibited by 
the congress prior to the year one thousand 
eight hundi-ed and eight, but a tax or duty 
may be imposed on such importations, not 
exceeding ten dollars for each person." 

Article 5 prescribes the mode for the 
amendment of the constitution, and con- 
cludes with this proviso: "Provided, that no 

on such mutual plan separate and apart from 
its other accounts. 

"Nor to any insurance company or association 
which conducts all its business solely upon the 
mutual plan, and only for the benefit of its 
policy holders or members, and having no capi- 
tal stock and no stock or shareholders, and hold- 
ing all its property in trust and in reserve for 
its policy holders or members; nor to that part 
of the business of any insurance company hav- 
ing a capital stock and stock and shareholders, 
which is conducted on the mutual plan, sepa- 
rate from its stock plan of insurance, and sole- 
ly for the benefit of the policy holders and mem- 
bers insured on said mutual plan, and holding 
all the property belonging to and derived from 
said mutual part of its business in trust and re- 
serve for the benefit of its policy holders and 
members insured on said mutual plan. 

"That all state, county, municipal, and town 
taxes paid by corporations, companies, or as- 
sociations, shall be included in the operating 
and business expenses of such corporations, 
companies, or associations. 

"Sec. 33. That there shall be levied, collected, 
and paid on all salaries of ofEcers, or payments 
for services to persons in the civil, military, na- 
val, or other employment or service of the Unit- 
ed States, including senators and representa- 
tives and delegates in congress, when exceeding 
the rate of four thousand dollars per annum, a 
tax of two per centum on the excess above the 
said four thousand dollars; and it shall be the 
duty of all paymasters and all disbursing offi- 
cers under tho government of the United States, 
or persons in the employ thereof, when making 
any payment to a\iy officers or persons as afore- 
said, whose compensation is determined by a 
fixed salary, or upon settling or adjusting the 
accounts of such officers or persons, to deduct 
and withhold the aforesaid tax of two per cen- 
tum; and the pay roll, receipts, or accoxmt of 
officers or persons paying such tax as aforesaid 
shall be made to exhibit the fact of such pay- 
ment. And it shall be the duty of the ac- 
counting officers of the treasury department, 
when auditing the accounts of any paymaster 
■or disbursing officer, or any officer withholding 
his salary from moneys received by him, or 
when settling or adjusting the accounts of any 
such officer, to require evidence that the taxes 
mentioned in this section have been deducted 
and paid over to the treasurer of the United 
States, or other officer authorized to receive 
the same. Every corporation which pays to any 
employe a salary or compensation exceeding 
four thousand dollars per annum shall report 
the same to the collector or deputy collector of 
his district and said employe shall pay thereon, 
subject to the exemptions herein provided for, 
the tax of two per centum on the excess of his 
salary over four thousand dollars: provided, 
that salaries due to state, county, or municipal 
officers shall be exempt from the income tax 
herein levied." 

Bv section 34. sections 3167, 3172, 3173, and 
S17G of the Revised Statutes of the United 
States as amended were amended so as to 
provide that it should be unlawful for the col- 
lector and other officers to make known, or to 



amendment which may be made prior to 
the year one thousand eight hundred and 
eight shall in any manner affect the first and 
fourth clauses in the ninth section of the first 
article." 

Jos. H. Choate, C. A. Seward, B. H. Bris- 
tow, Wm. D. Guthrie, .David Willcox, Charles 
Steele, and Charles F. Southmayd, for appel- 
lants Pollock and Hyde. Herbert B. Turner, 
for appellee Fanners' Loan & Trust Compa- 
ny. James C. Carter, Wm. C. Gulliver, and 
P. B. Candler, for appellee Continental 

publish, amount or source of income, under pen- 
alty; that every collector should "from time to 
time cause his deputies to proceed through every 
part of his district and inquire after and con- 
cerning all persons therein wdio are liable to pay 
any internal revenue tax, and all persons own- 
ing or having the care and management of any 
objects liable to pay any tax, and to make a list 
of such persons and enumerate said objects"; 
that the tax returns must be made on or before 
the first Monday in March; that the collectors 
may make returns when particulars are fur- 
nished; that notice be given to absentees to 
render returns; that collectors may summon 
persons to produce books and testify concerning 
returns; that collectors may enter other dis- 
tricts to examine persons and books, and may 
make returns; and that penalties may be im- 
posed on false returns. 

By section 3.5 it was provided that corpora- 
tions doing business for profit should make re- 
turns on or before the first Monday of March 
of each year "of all the following matters for 
the whole calendar year last preceding the 
date of such return: 

"First. The gross profits of such corporation, 
company, or association, from all kinds of busi- 
ness of every name and nature. 

"Second. The expenses of such corporation, 
company, or association, exclusive of interest, 
annuities, and dividends. 

"Third. The net profits of such corporation, 
company, or association, without allowance for 
interest, annuities, or dividends. 

"Fourth. The amount paid on account of in- 
terest, annuities, and dividends, stated sepa- 
rately. 

"Fifth. The amount paid in salaries of four 
thousand dollars or less to each person em- 
ployed. 

"Sixth. The amount paid in salaries of more 
than four thousand dollars to each person 
employed and the name and address of each 
of such persons and the amount paid to each." 

By section 36, that books of account should be 
kept by corporations as prescribed, and in- 
spection thereof be granted under penalty. 

By section 37 provision is made for receipts 
for taxes paid. 

By a joint resolution of February 21, 1895, 
the time for making returns of income for the 
year 1894 was extended, and it was provided 
that "in computing incomes under said act the 
amounts necessarily paid for fire insurance pre- 
miums and for ordinary repairs shall be de- 
ducted"; and that "in computing incomes un- 
der said act the amounts received as dividends 
upon the stock of any corporation, comixiny or 
association shall not be included in case such 
dividends are also liable to the tax of two per 
centum upon the net profits of said corporation, 
company or association, although such tax 
may not have been actually paid by said cor- 
poration, company or association at the time of 
making returns by the person, corporation or 
association receiving such dividends, and re- 
turns or reports of the names and salaries of 
employes shall not be renuired from employ- 
ers unless called for by the collector in order 
to verify the returns of employes." 



142 



THE rOWEU OF TAXATION. 



Trust roiiipauy. Attorney (Jcncnil olnoy 
and AssistiHit Attorney General \\'liitney, for 
tbe I'nited States. 

Mr. Chief Justice FULLER. after statiuj; the 
facts in the forefjoing language, delivered the 
opinion of the court. 

The jurisdiction of a court of equity to pre- 
vent any threatened breach of trust in the 
inisai>plication or diversion of the funds of a 
<-oi'i»onilion by illegal payments out of its 
capital or profits has been freciuently sus- 
tained. Dodge V. Woolsey. 18 How. 331; 
llawes V. Oakland. 104 U. S. 450. 

As in Dodge v. Woolsey, this bill proceeds 
on the ground that the defendants -would be 
guilty of STich brea<'h of trust or duty in vol- 
luitarily making returus foi' the imposition 
of. and paying, an unconstitutional tax: and 
also on allegations of threatened multiplicity 
of suits and ineparable in.jui-y. 

The objection of adequate remedy at law 
was not raised below, nor is it now raised by 
appellees, if it coidd l>e entertained at all at 
this stage of the proceedings; and. so far as 
it was within the power of the government 
to do so, the question of jurisdiction, for the 
purposes of the case, was explicitly waived 
on the argument. The relief sought was in 
respect of voluntai-y action by the defendant 
company, and not in respect of the assess- 
ment and collection them.selves. Under these 
circumstances, we should not be justified in 
declining to proceed to judgment upon the 
merits. I'elton v. Bank, 101 U. S. 143, 14S; 
Cummings v. Bank, Id. IHo. ir>7; Keynes v. 
Dumont. 130 U. S. 354, 9 Sup. Ct. 4S(>. 

Since the opinion in Marbury v. Madison, 1 
Cranch, 137. 177, was delivered, it has not 
been doubted that it is within judicial com- 
petency, by express provisions of the constitu- 
tion or by necessary inference and implica- 
tion, to determine whether a given law of the 
United States is or is not made in pursuance 
of the constitution, and to hold it valid or 
void accordingly. "If," said Chief .Tustice 
Mai'shall, "both the law and the constitution 
apply to a particular case, so that the court 
must either decide that ca.se conformably to 
the law. disregarding the constitution, or con- 
formably to the constitution, disregarding 
the law, the court must detei'uiine which of 
these conflicting rules governs the case. 
This is of the very essence of judicial duty." 
And the chief justice added that the doc- 
trine "that courts must close their eyes on 
the constitution, and see only the law." 
"would subvert the very foundation of all 
written constitutions." Necessarily the pow- 
er to declare a law unconstitutional is al- 
ways exercised with reluctance; but the du- 
ty to do so, in a proper case, cannot be de- 
clined, and must be discharged in accordance 
with the deliberate judgment of the tribunal 
in which the validity of the enactment is di- 
rectly drawn in question. 

The contention of the complainant is: 

First. That the law in question, in impos- 



ing a tax on the income or rents of real es- 
tate, imposes a tax upon the real estate it- 
self; and in imposing a tax on the interest 
or other income of bonds or other personal 
property, held for the purposes of income or 
ordinarily yielding income, imposes a tax up- 
on the personal estate itself; that such tax 
is a direct tax, and void because imposed 
without regard to the rule of apportionment: 
and that l)y reason thereof the whole hiw is 
invalidated. 

Second. That the law is invalid, because 
imposing indirect taxes in violation of the 
constitutional requirement of uniformity, 
and therein also in violation of the implied 
limitation upon taxation that all tax laws 
must a]>ply equally, impartially. and uniform- 
ly to all similai-ly situated. Under the sec- 
ond head, it is contended that the rule of uni- 
formity is violated, in that the law taxes the 
income of certain corporations, companies, 
and associations, no matter how created or 
organized, at a higher rate than the incomes 
of individuals or partnerships derived from 
precisely similar property or business; in 
that it exempts from the operation of the act 
and from the burden of taxation numerous 
corporations, companies, and associations hav- 
ing similar property and carrying on similar 
business to those expressly taxed; in that it 
denies to individuals deriving their income 
from shares in certain conjorations, compa- 
nies, and associations the benetit of the ex- 
emption of $4,(X)0 granted to other persons 
Interested in similar proi)erty and business; 
in the exemption of l);4,000; in the exemption 
of building and loan associations, savings 
banks, mutual life, tire, marine, and accident 
insurance companies, existing solely for the 
pecuniary profit of their members, — these and 
other exemptions being alleged to be purely 
arbitrary and capricious, justitied l)y no pub- 
lic purpose, and of such magnitude as to in- 
validate the entire enactment; and in other 
particulars. 

Third. That the law is invalid so far as 
imposing a tax upon income received from 
state and municipal bonds. 

The constitution provides that representa- 
tives and direct taxes shall be apportioned 
among the several states according to num- 
bers, and that no direct tax shall be laid ex- 
cept according to the enumeration provided 
for; and also that all duties, imposts, and ex- 
cises shall be uniform throughout the Unit- 
ed States. 

The men who framed and adopted that in- 
strument had just emerged from the sti-uggle 
for independence whose rallying cry had been 
that "taxation and representation go togeth- 
er." 

The mother country had taught the col- 
onists, in the contests Avaged to establish that 
taxes could not be imposed by the sovereign 
except as they were granted by the repre- 
sentatives of the realm, that self-taxation con- 
stituted the main security against opp'-.'ssion. 
As Burke declared, in his speech on concilia- 



LIMITATIONS IMPOSED BY FEDERAL COXSTITUTION. 



U?y 



tion with America, tlie defenders of tlie ex- 
cellence of the English constitution "took in- 
finite pains to inculcate, as a fundamental 
principle, that, in all monarchies, the people 
Qiust, in effect, themselves, mediately or im- 
mediately, possess the power of granting 
their own money, or no shadow of liberty 
could subsist." The principle was that the 
consent of those who were expected to pay it 
was essential to the validity of any tax. 

The states were about, for all national pur- 
poses embraced in the constitution, to become 
one, united under the same sovereign author- 
ity, and governed by the same laws. But as 
they still retained their jurisdiction over all 
persons and things within their territorial 
limits, except where surrendered to the gen- 
eral government or restrained by the constitu- 
tion, they were careful to see to it that taxa- 
tion and representation should go together, so 
that the sovereignty reserved should not be im- 
paired, and that when congress, and especial- 
ly the house of representatives, Avhere it was 
specifically provided that all revenue bills 
must originate, voted a tax upon property, 
it should be with the consciousness, and under 
the responsibility, that in so doing the tax so 
voted would proportionately fall upon tlie im- 
mediate constituents of those who imposed it. 

More than this, by the constitution the 
states not only gave to the nation tlie concur- 
rent power to tax persons and property di- 
rectly, but they surrendered their own poAver 
to levy taxes on imports and to regulate com- 
merce. All the 13 were seaboard states, but 
they varied in maritime importance, and differ- 
ences existed between them in population, in 
wealth, in the character of pi'operty and of 
business interests. ^Moreover, they looked for- 
ward to the coming of new states from the 
great West into the vast empire of their an- 
ticipations. So when the wealthier states as 
between themselves and their less favored as- 
sociates, and all as between themselves and 
those who were to come, gave up for the com- 
mon good the great sources of revenue de- 
rived through commerce, they did so in re- 
liance on the protection afforded by restric- 
tions on the grant of power. 

Thus, in the matter of taxation, the consti- 
tution recognizes the two great classes of di- 
rect and indirect taxes, and lays down two 
rules by which their imposition must be gov- 
erned, namely, the rule of apportionment as 
to direct taxes, and the rule of uniformity as 
to duties, imposts, and excises. 

The rule of uniformity was not prescribed 
to the exercise of the power granted by the 
first paragraph of section 8 to lay and col- 
lect taxes, because the rule of apportionment 
as to taxes had already been laid down in the 
third paragraph of the second section. 

And this view was expressed bj'^ Mr. Chief 
Justice Chase in The I.iicense Tax Cases, 
5 Wall. 4(j2. 471. when he said: "It is true that 
the power of congress to tax is a very exten- 
sive power. It is given in the constitution 
with only one exception and only two quali- 



fications. Congress cannot tax exports, and 
it must impose direct taxes by the rule of ap- 
portionment, and indirect taxes by the rule 
of uniformity. Thus limited, and thus only, 
it reaches every subject, and may be exer- 
cised at discretion." 

And although there ha'S'e been, from time to 
time, intimations that there might be some 
tax which was not a direct tax. nor included 
under the words "duties, imports, and ex- 
cises." sucli a tax, for more than 100 years of 
national existence, has as yet remained un- 
discovered, notwithstanding the stress of par- 
ticular circumstances has invited tliorough in- 
vestigation into sources of revenue. 

The first question to be considered is wheth- 
er a tax on the rents or income of real estate 
is a direct tax within the meaning of the 
constitution. Ordinarily, all taxes paid pri- 
marily by persons who can shift the burden 
upon some one else, or who are under no legal 
compulsion to pay them, are considered indi- 
rect taxes; but a tax upon property holders 
in respect of their estates, whether real or 
personal, or of the income yielded by such es- 
tates, and the i)ayment of Avhich cannot be 
avoided, are direct taxes. Nevertheless, it 
may be admitted that, although this definition 
of direct taxes is prima facie correct, and to 
be applied in the consideration of the question 
before us, yet that tlie constitution may bear 
a different meaning, and that such different 
meaning must be recognized. But in arriving 
at any conclusion upon this point we are at 
liberty to refer to the historical circumstan- 
ces attending the framing and adoption of the 
constitution, as well as the entire frame and 
scheme of the instrument, and the conse- 
quences naturally attendant upon the one con- 
j struction or the other. 

j We inquire, therefore, what, at the time 
[ the constitution was framed and adopted, 
i were I'ecogni/ed as direct taxes? What did 
■ those who framed and adopted it understand 
the terms to designate and include? 

We must remember that the 55 members of 
the constitutional convention were men of 
great sagacity, fully conversant Avith govern- 
mental problems, deeply conscious of the na- 
ture of their task, and profoundly convinced 
that they were laying the foundations of a 
vast future empire. "To many in the as- 
sembly the work of the great French magis- 
trate on the 'Spirit of liaws,' of which Wash- 
ington with his own hand had copied an ab- 
stract by Madison, Avas the faA^orite manual. 
Some of them had made an analysis of all 
fedei-al governments in ancient and modern 
times, and a few were well versed in the 
best English, Swiss, and Dutch writers on 
government. They had immediately before 
them the example of Great Britain, and they 
had a still better school of political wisdom 
in the republican constitutions of their sev- 
eral states, which many of them had assisted 
to frame." 2 Bancr. Hist. Const. 9. 

The Federalist demonstrates the value at- 
tached by Hamilton, Madison, and Jay to 



144 



THE POWER OF TAXATION. 



historical experience, and sliows tliat tliey 
had made a careful study of many forms of 
government. Many of the framers were par- 
ticularly versed in the literature of the pe- 
riod, — Franklin, Wilson, and Hamilton for ex- 
;ample. Turgot had published in 1764 his 
work on taxation, and in 17(i(j his essay on 
"The Formation and Distribution of Wealth," 
while Adam Smith's "Wealth of Nations" 
was published in 1770. Franklin, in 176G. 
had said, upon his examination before the 
house of commons, that: "An external tax 
is a duty laid on commodities imported; that 
duty is added to the first cost and other 
charges on the commodity, and, Avhen it is 
•offered to sale, makes a part of the price. 
If the people do not like it at that price, they 
refuse it. They are not obliged to pay it. 
But an internal tax is forced from the people 
without their consent, if not laid by their 
own representatives. The stamp act says we 
shall have no commerce, make no exchange 
of property with each other, neither purchase 
nor grant, nor recover debts; we shall nei- 
ther marry nor make our wills, — unless we 
pay such and such sums; and thus it is in- 
tended to extort our money from us, or ruin 
us by the consequences of refusing to pay." 
IG Pari. Hist. 144. 

They were, of coiu-se. familiar with the 
modes of taxation pursued in the several 
states. From the report of Oliver Wolcott, 
when secretary of the treasury, on direct 
taxes, to the house of representatives, De- 
cember 14, 1790,— his most important state 
paper (Am. St. P. 1 Finance, 431),— and the 
various state laws then existing, it appears 
that prior to the adoption of the constitu- 
tion nearly all the states imposed a poll tax, 
taxes on land, on cattle of all kinds, and 
various kinds of personal property, and that, 
in addition, Massachusetts, Connecticut, Penn- 
sylvania, Delaware, New Jersey, Virginia, 
and South Carolina assessed their citizens 
upon their profits from professions, trades, 
and employments. 

Congress, under the articles of confedera- 
tion, had no actual operative power of taxa- 
tion. It could call upon the states for their 
respective contributions or quotas as pre- 
viously determined on; but. in case of the 
failure or omission of the states to furnish 
such contribution, there were no means of 
compulsion, as congress had no power what- 
ever to la.y any tax upon individuals. This 
imperatively demanded a remedy; but the 
opposition to granting the power of direct 
taxation in addition to the substantially ex- 
clusive power of laying imposts and duties 
was so strong that it required the conven- 
tion, in securing effective powers of taxation 
to the federal government, to use the utmost 
care and skill to so harmonize conflicting 
interests that the ratification of the instru- 
.ment could be obtained. 

The situation and the result are thus de- 
scribed by Mr. Chief Justice Chase in Lane 
Co. V. Oregon, 7 Wall. 71, 70: "The people 



of the United States constitute one nation, 
under one government; and tliis government, 
within the scope of the powers with which 
it is invested, is supreme. On the other 
hand, the people of each state compose a 
state, having its own government, and en- 
dowed with all the functions essential to 
separate and independent existence. The 
states disunited might continue to exist. 
Witliout the states in union, there could be 
no such political body as the United States. 
Both the states and the T'nited States ex- 
isted before the constitution. The people, 
through that instrument, establish'Cd a more 
perfect union by substituting a national gov- 
ernment, acting, with ample power, directly 
upon the citizens, instead of the confederate 
government, which acted, with powers great- 
ly restricted, only upon the states. But in 
many articles of the constitution the neces- 
sary existence of the states, and, within their 
proper spheres, the independent authority of 
the states, is distinctly recognized. To them 
nearly the whole charge of interior regula- 
tion is committed or left; to them and to 
the people all powers not expressly delegated 
to the national government are reserved. The 
general condition was well stated by Mr. 
Madison in the Federalist, thus: 'The fed- 
eral and state governments are in fact but 
different, agents and tnistees of the people, 
constituted with different powers, and des- 
ignated for different purposes.' Now, to the 
existence of the states, themselves necessary 
to the existence of the United States, the 
power of taxation is indispensable. It is an 
essential function of government. It was ex- 
ercised by the colonies; and when the col- 
onies became' states, both before and after 
the formation of the confederation, it was 
exercised by the new governments. Under 
the articles of confederation the government 
of the United States was limited in the ex- 
ercise of this power to requisitions upon the 
states, while the whole power of direct and 
indirect taxation of persons and property, 
whether by taxes on polls, or duties on im- 
ports, or duties on internal production, man- 
ufacture, or use. was acknowledged to belong 
exclusively to the states, without any other 
limitation than that of noninterference with 
certain treaties made by congress. The con- 
stitution, it is true, greatly changed this 
condition of things. It gave the power to 
tax, both directly and indirectly, to the na- 
tional government, and, subject to the one 
prohibition of any tax upon exports, and to 
the condition of uniformity in respect to in- 
direct, and of proportion in respect to direct, 
taxes, the power was given without any ex- 
press reservation. On the other hand, no 
power to tax exports, or imports except for 
a single purpose and to an insignificant ex- 
tent, or to lay any duty on tonnage, was per- 
mitted to the states. In respect, however, to 
property, business, and persons, within their 
respective limits, their power of taxation re- 
mained and remains entire. It is, indeed, a 



LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 



145 



concurrent power, and in the case of a tax 
on the same subject by both governments 
the claim of the United States, as the su- 
preme authority, must be prefeiTed; but 
with this qualification it is absolute. Tlie ex- 
tent to which it shall be exercised, the sub- 
jects upon which it shall be exercised, and 
the mode in which it shall be exercised, are 
all equally within the discretion of the leg- 
islatures to which the states commit the ex- 
ercise of the power. That discretion is re- 
strained only by the will of the people ex- 
pressed in the state constitutions or through 
elections, and by the condition that it must 
not be so used as to burden or embarrass 
the operations of the national government. 
There is nothing in the constitution which 
contemplates or authorizes any direct abridg- 
ment of this power by national legislation. 
To the extent just indicated it is as com- 
plete in the states as the like power, within 
the limits of the constitution, is complete in 
congress." 

On May 29, 1787, Charles Pinckney pre- 
sented his draft of a proposed constitution, 
which provided that the proportion of direct 
taxes should be regulated by the whole num- 
ber of inhabitants of every description, taken 
in the manner prescribed by the legislature, 
and that no tax should be paid on articles 
exported from the United States. 1 Elliot, 
Deb. 147, 148. 

Mr. Randolph's plan declared "that the 
right of suti'rage, in the national legislature, 
ought to be proportioned to the quotas of 
contribution, or to the number of free in- 
habitants, as the one or the other may seem 
best, in different cases." 1 Elliot, Deb. 143. 

On June 15, Mr. Paterson submitted several 
resolutions, among which was one proposing 
that the United States in congress should be 
authorized to make requisitions in propor- 
tion to the whole number of white and other 
free citizens and inhabitants, including those 
bound to servitude for a term of years, and 
three-fifths of all other persons, except In- 
dians not taxed. 1 ElHot, Deb. 175, 176. 

On the 9th of July, the proposition that the 
legislature be authorized to regulate the num- 
ber of representatives according to wealth 
and inhabitants was approved, and on the 
11th it was voted that, "in order to ascertain 
the alterations that may happen in the popu- 
lation and wealth of the several states, a 
census shall be taken," although the resolu- 
tion of which this formed a part was de- 
feated. 5 Elliot, Deb. 288, 295; 1 Elliot, Deb. 
200. 

On July 12th, Gov. Morris moved to add to 
the clause empowering the legislature to vary 
the representation according to the amount 
of wealth and number of the inhabitants a 
proviso that taxation should be in proportion 
to representation, and, admitting that some 
objections lay against his proposition, which 
would be removed by limiting it to direct 
taxation, since "with regard to indirect taxes 
on exports and imports, and on consumption, 

SMITH, CONST.LAW — 10 



the rule would be inapplicable," varied his 
motion by insei'ting the word "direct," where- 
upon it passed as follows: "Provided, al- 
ways, that direct taxation ought to be pro- 
portioned to representation." 5 Elliot, Deb. 
802. ■ 

Amendments were proposed by Mr. Ells- 
worth and Mr. Wilson to the effect that the 
rule of contribution by direct taxation should 
be accoi'ding to the number of white inhabit- 
ants and three-fifths of every other descrip- 
tion, and that, in order to ascertain the altera- 
tions in the direct taxation which might be 
required from time to time, a census should 
be taken. The word "wealth" was struck 
out of the clause on motion of Mr. Randolph; 
and the whole proposition, proportionate 
representation to direct taxation, and both 
to the white and three-fifths of the colored in- 
habitants, and requiring a census, was 
adopted. 

In the course of the debates, and after the 
motion of Mr. Ellsworth that the first census 
be taken in three years after the meeting of 
congress had been adopted, Mr. Madison 
records: "Mr. King asked what was the pre- 
cise meaning of 'direct taxation.' No one an- 
swered." But Mr. Gerry immediately moved 
to amend by the insertion of the clause that 
"from the first meeting of the legislature of 
the United States until a census shall be 
taken, all moneys for supplying the public 
treasmy by direct taxation shall be raised 
from the several states according to the num- 
ber of their representatives respectively in 
the first branch." This left for the time the 
matter of collection to the states. Mr. Lang- 
don objected that this would bear unreason- 
ably hard against New Hampshire, and Mr. 
Martin said that dii-ect taxation should not 
be used but in cases of absolute necessity, 
and then the states would be the best judges 
of the mode. 5 Elliot, Deb. 451, 453. 

Thus was accomplished one of the great 
compromises of the constitution, resting on the 
doctrine that the right of representation ought 
to be conceded to every community on which 
a tax is to be imposed, but crystallizing it in 
such form as to allay jealousies in respect of 
the futui'e balance of power; to reconcile 
conflicting views in respect of the enumera- 
tion of slaves; and to remove the objection 
that, in adjusting a system of representa- 
tion between the states, regard should be had 
to their relative wealth, since those who were 
to be most heavily taxed ought to have a 
proportionate influence in the government. 

The compromise, in embracing the power of 
direct taxation, consisted not simply in in- 
cluding part of the slaves in the enumera- 
tion of population, but in providing that, as 
between state and state, such taxation should 
be proportioned to representation. The es- 
tablishmc" t of the same rule for the appor- 
tionment of taxes as for regulating the pro- 
portion of representatives, observed Mr. Madi- 
son in No. 54 of the Federalist, was by no 
means founded on the same principle, for, 



146 



Till-: POWEIt OF TAXATION. 



as to the foiiner, it had reference to the pro- 
portion of wealth, and, altliough in respect of 
that it was in ordinary eases a very luitit 
measnre. it "had too recently obt^iined the 
general sanction of America not to have 
fonnd a ready preference with the conven- 
tion." while the opposite interests of the 
states, balancing each other, would produce 
impartiality in enumeration. By prescribing 
this rule. Hamilton wrote (Federalist. No. 
;«>) that the door was shut "to partiality or 
oppression," and "the abuse of this power of 
taxation to have been provided against with 
guarded circumsi)ection"; and obviously the 
operation of direct taxation on every state 
tended to pi'event resort to that mode of sup- 
ply except under pressure of necessity, and to 
promote prudence and economy in expendi- 
ture. 

We repeat that the right of the federal 
government to dii-ectly assess and collect its 
own taxes, at lea.st until after requisitions up- 
on the states had been made and failed, was 
one of the chief points of conflict; and Mas- 
SJichusetts, in ratifying, recommended the 
adoption of an amendment in these words: 
"That congress do not lay direct taxes but 
when the moneys arising from the impost 
and excise are insufticient for the public exi- 
gencies, nor then until congress shall have 
iii'st made a requisition upon the states to as- 
sess, levy, and pay their respective propor- 
tions of such requisition, agreealdy to the 
census tixed in the said constitution, in such 
way and manner as the legislatures of the 
states shall think best." 1 Elliot, Deb. 322. 
And in this South Carolina, New Hamp- 
shire, and Uhode Island concuri-ed. Id. 32.j, 
32(;. 32St. :!:?(;. 

I^uther Martin, in his well known commtmi- 
catiou to the legislature of Maryland in Janu- 
ary, ITSS, expressed his views thus: "By the 
jK)wei- to lay and collect taxes they may pro- 
ceed to direct taxation on every individual, 
either by a capitation tax on their heads. 
or an assessment on their property. * * * 
Many of the members, and myself in the 
number, thought that the states were much 
better judges of the circtimstances of their 
citizens, and what sum of money could 
be collected from them by direct taxation, 
and of the manner in which it could be 
raised with the greatest ease and conveni- 
ence to their citizens, than the general gov- 
ernment could be; and that the general gov- 
ernment ought not to have the power of 
laying direct taxes in any case but in that 
of the delinquency of a state." 1 Elliot, Deb. 
344. 3(>8. o(J!t. 

Ellsworth and Sherman wrote the governor 
of Connecticut, September 2ti. 1787. that it 
was probable "that the principal branch of 
revenue will be duties on imports. What 
may be necessary to be raised by direct 
taxation is to be apportioned on the several 
states, according to the number of their in- 
habitants; and although congress may raise 
the mouej' by their own authoritj', if neces- 



sary, yet that authority need not be exer- 
cised if each state will furnish its quota." 
1 Elliot, Deb. 492. 

And Ellsworth, in the Connecticut conven- 
tion, in discussing the power of congress to 
lay taxes, pointed out that all sources of 
revenue, excepting the impost, still lay open 
to the .states, and insisted that it was "nec- 
essary that the i)ower of the general legis- 
lature should extend to all the objects of taxa- 
tion, that government should be able to com- 
mand all the resotirces of the country, be- 
cause no man can tell what our exigencies 
may be. Wars have now become rather wars 
of the purse tlian of the sword. Government 
must therefore be able to command the whole 
power of the ptirse. * * * Direct taxation 
can go but little way towards raising a reve- 
nue. To raise money in this way, people 
must be provident; they must constantly be 
l-aying up money to answer the demands of 
the colliH-tor. But you cannot nutke i)enple 
thus provident. If yoti would do anything 
to the i)urpose, you must come in when they 
are .spending, and take a part with them. 
* * * All nations have seen the necessity 
and i)roi)riety of raising a revenue by indi- 
rect taxation, by duties upon articles of 
consumption. * * * in England the whole 
public revenue is about twelve millions ster- 
ling per annum. The land tax amounts to 
about two millions; the window and some 
other taxes, to about two millions more. The 
other eight millions are raised upon articles 
of consumption. * * * This constitution 
defines the extent of the powers of the gen- 
eral government. If the general legislature 
should at any time overleap their limits, the 
judicial department is a constitutional check. 
If the United States go beyond their powers, 
if they make a law which the constitution 
does not authorize, it is void; and the judi- 
cial power, the national judges, who. to se- 
cure their impartiality, are to be made in- 
dependent, will declare it to be void." 2 
Elliot, Deb. 191, 102, 190. 

In the convention of Massachusetts by 
which the constitution was ratified, the sec- 
ond section of article 1 being under consid- 
eration, Mr. King said: "It is a principle of 
this constitution that representation and tax- 
ation should go hand in hand. * * * By 
this rule are representation and taxation to 
be apportioned. And it was adopted, because 
it was the language of all America. Accord- 
ing to the Confederation, ratified in 1781, 
the sums for the general welfare and de- 
fense should be apportioned according to the 
surveyed lands, and improvements thereon, 
in the several states; but that it hath never 
been in the power of congress to follow that 
rule, the returns from the several states be- 
ing so very imperfect." 2 Elliot, Deb. 36. 

Theophilus Parsons observed: "Congress 
have only a concurrent right with each state 
in laying direct taxes, not an exclusive right; 
and the right of each state to direct ta"-;!- 
tion is equallj extensivo and perfect as the 



LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 



147 



right of congress." 2 Elliot, Deb. 93. And 
John Adams, Dawes, Sumner, King, and 
Sedgwick all agreed that a direct tax would 
be the last source of revenue resorted to by 
congress. 

In the New York convention. Chancellor 
Livingston pointed out that, when the im- 
posts diminished and the expenses of the 
government increased, "they must have re- 
course to direct taxes; that is. taxes on land 
and specific duties." 2 Elliot, Deb. 341. 
And Mr. Jay, in reference to an amendment 
that direct taxes should not be imposed until 
requisition had been made and proved fruit- 
less, argued that the amendment would in- 
volve great ditticulties, and that it ought to 
be considered that direct taxes were of two 
kinds. — general and specific. Id. 380. 381. 

In Virginia, Mr. John Marshall said: "The 
objects of direct taxes are well understood. 
They are but few. What are they? Lauds, 
slaves, stock of all kinds, and a few other 
ai'ticles of domestic property. * * * They 
will have the benefit of the knowledge and 
experience of the state legislature. They will 
see in wnat manner the legislature of Vir- 
ginia collects its taxes. * * * Cannot con- 
gress regulate the taxes so as to be equal 
on all parts of the community? Where is 
tiie absurdity of having thirteen revenues? 
Will they clash with or injure each other? 
If not, why cannot congress make thirteen 
distinct laws, and impose the taxes on the 
general objects of taxation in each state, 
so as that all persons of the society shall 
pay equally, as they ought? 3 Elliot, Deb. 
229, 23.J. At that time, in Virginia, lands 
were taxed, and specific taxes assessed on 
certain specified objects. These objects were 
stated by Sec. Wolcott to be taxes on lauds, 
houses in towns, slaves, stud horses, jack- 
asses, other horses and mules, billiard tables, 
four-wheeled riding carriages, phaetons, stage 
wagous, and riding carriages with two wheels; 
and it was undoubtedly to these objects that 
the futvu-e chief justice referred. 

Mr. Randolph said: "Biit in this new con- 
stitution there is a more just and equitable 
rule fixed, — a limitation beyond which they 
cannot go. Representatives and taxes go 
hand in hand. According to the one will the 
other be regulated. The number of represent- 
atives is determined by the number of in- 
habitants. They have nothing to do but to 
lay taxes accordingly." 3 Elliot, Deb. 121. 

Mr. George Nicholas said: "The proportion 
of taxes is fixed by the number of inhabit- 
ants, and not regulated by the extent of ter- 
ritory or fertility of soil. * * * Each state 
Avill know, from its population, its proportion 
of any general tax. As it was justly observ- 
ed by the gentleman over the way [Mr. Ran- 
dolph], they cannot possibly exceed that pro- 
portion. They are limited and restrained ex- 
pressly to it. The state legislatures have no 
check of this kind. Their power is uncon- 
trolled." 3 Elliot, Deb. 243, 244. 

Mr. Madison remarked that "they will be 



limited to fix the proportion of each state, 
and they must raise it in the most convenient 
and satisfactory manner to the public." 3 
Elliot, Deb. 255. 

From these references — and the.v might be 
extended indefinitely— it is clear that the rule 
to govern each of the great classes into which 
taxes were divided was prescribed in view of 
the comiuonly accepted distinction between 
them and of the taxes directly levied under 
the 'systems of the states; and that the difter- 
ence between direct and indirect taxation was 
fully appreciated is supported by the con- 
gressional debates after the government was 
organized. 

In the debates in the house of representa- 
tives preceding the passage of the act'of con- 
gress to lay "duties upon caiTiages for the 
conveyance of persons," approved June 5, 
1794 (1 Stat. 373. c. 45). Mr. Sedgwick said 
that "a capitation tax, and taxes on land and 
on property and income generally, were direct 
charges, as well in the immediate as ultimate 
sources of contribution. He had considered 
those, and those only, as direct taxes in their 
operation and effects. On the other hand, a 
tax imposed on a specific article of personal 
property, and particularly of objects of lux- 
ury, as in the case under consideration, he 
had never supposed had been considered a 
direct tax, within the meaning of the constitu- 
tion." 

Mr. Dexter observed that his colleague "had 
stated the meaning of direct taxes to be a 
capitation tax, or a general tax on all the 
taxable property of the citizens; and that a 
geutieuiitn from Virginia [Mr. Nicholas] 
thought the meaning was that all taxes are 
direct which are paid by the citizen without 
being recompensed by the consumer; but 
that, where the tax was only advanced and 
repaid by the consumer, the tax was indirect. 
He thought that both opinions were just, and 
not inconsistent, though tiie gentlemen had 
differed about them. He thought that a gen- 
eral tax on all taxable property was a direct 
tax, because it was paid without being 
recompensed by the consumer." Ann. 3d 
Cong. 644, G46. 

At a subsequent day of the debate, Mr. 
Madison objected to the tax on carriages as 
"an unconstitutional tax"; but Fisher Ames 
declared that he had satisfied himself that it 
was not a direct tax. as "the duty falls not 
on the possession, but on the use." Ann. 730. 

Mr. Madison wrote to Jefferson on May 11, 
1794: "And the tax on carriages succeeded, 
in spite of the constitution, by a majority of 
twenty, the advocates for the principle being 
re-enforced by the adversaries to luxuries." 
"Some of the motives which they decoyed to 
their support ought to premonish them of the 
danger. By breaking down the barriers of 
the constitution, and giving sanction to the 
idea of sumptuary regulations, wealtli may 
find a precarious defense in the shield of jus- 
tice. If luxury, as such, is to be taxed, the 
greatest of all luxuries, says Paine, is a great 



148 



THE POWER OF TAXATION. 



estate. Even on the present occasion, it has 
been found prudent to yield to a tax on trans- 
fers of stock in the funds and in the banks." 

2 Mad. Writings, 14. 

But Albert Gallatin, in his Sketch of the 
Finances of the United States, published in 
November, 1796, said: "The most generally- 
received opinion, however, is tnat. by direct 
taxes in the constitution, those are meant 
vv'hich are raised on the capital or revenue of 
the people; by indirect, such as are raised on 
their expense. As that opinion is in itself 
rational, and conformable to the decision 
which has taken place on the subject of the 
carriage tax, and as it appears important, for 
the sake of preventing future controversies, 
which may be not more fatal to the revenue 
than to the tranquillity of the Union, that a 
fixed interpretation should be generally adopt- 
ed, it will not be improper to corroborate it 
by quoting the author from whom the idea 
seems to have been borrowed." He then 
quotes from Smith's Wealth of Nations, and 
continues: "The remarkable coincidence of 
the clause of the constitution with this pas- 
sage in using the word 'capitation' as a gen- 
eric expression, including the different species 
of direct taxes,— an acceptation of the word 
peculiar, it is believed, to Dr. Smith, — leaves 
little doubt that the framers of the one had 
the other in view at the time, and that they, 
as well as he, by direct taxes, meant those 
paid directly from the falling immediately on 
the revenue; and by indirect, those which are 
paid indirectly out of the revenue by falling 
immediately upon the expense." 3 Gall. 
Writings (Adams' Ed.) 74, 75. 

The act provided in its first section "that 
there shall be levied, collected, and paid upon 
all carriages for the conveyance of persons, 
which shall be kept by or for any person for 
his or her own use, or to be let out to hire or 
for the conveyance of passengers, the several 
duties and rates following"; and then follow- 
■ed a fixed yearly rate on every coach, chariot, 
phaeton, and coachee, every four-wheel and 
every two-wheel top carriage, and upon every 
■other two-wheel carriage varying according 
to the vehicle. 

In Hylton v. U. S. (decided in March, 1796) 

3 Dall. 171, this court held the act to be con- 
stitutional, because not laying a direct tax. 
Chief Justice Ellswortli and Mr. Justice Gush- 
ing took no part in tne decision, and Mr. Jus- 
tice Wilson gave no reasons. 

Mr. Justice Chase said tliat he was inclined 
to think (but of this he did not "give a judi- 
cial opinion") that "the direct taxes contem- 
plated by the constitution are only two, to 
wit, a capitation or poll tax, simply, without 
regard to property, profession, or any other 
circumstance, and a tax on land"; and that 
he doubted "whether a tax, by a general as- 
sessment on personal property, within the 
United States, is included within the term 
'direct tax.' " But he thought that "an an- 
nual tax on carriages for the conveyance of 
persons may be considered as within the pow- 



er granted to congress to lay duties. The 
term 'duty' is the most comprehensive next to 
the generical term 'tax'; and practically, 
in Great Britain (wlience we take our general 
ideas of taxes, duties, imposts, excises, cus- 
toms, etc.), embraces taxes on stamps, tolls for 
passage, etc., and is not confined to taxes on 
importation only. It seems to me that a tax 
on expense is an indirect tax; and I think 
an annual tax on a carriage for the convey- 
ance of persons is of that kind, because a 
carriage is a consumable commodity, and 
such annual tax on it is on the expense of the 
owner." 

Mr. Justice Paterson said that "the con- 
stitution declares that a capitation tax is 
a direct tax; and, both in theory and practice, 
a tax on land is deemed to be a direct tax. 

* * * It is not necessary to determine 
whether a tax on the product of land be a 
direct or indirect tax. I'erhaps, the im- 
mediate product of land, in its original and 
crude state, ought to be considered as the 
land itself; it makes part of it; or else the pro- 
vision made against taxing exports would be 
easily eluded. Land, independently of its 
produce, is of no value. * * * Whether di- 
rect taxes, in the sense of the constitution, 
comprehend any other tax than a capitation 
tax, and taxes on land, is a questionable point 

* * * But as it is not before the court, it 
would be improper to give any decisive opin- 
ion upon it." And he concluded: "All taxes 
on expenses or consumption are indirect taxes. 
A tax on carriages is of this kind, and, of 
course, is not a direct tax." This conclusion 
he fortified by reading extracts from Adam 
Smith on the taxation of consumable commod- 
ities. 

Mr. Justice Iredell said: "There is no ne- 
cessity or propriety in determining what is 
or is not a direct or indirect tax in all cases. 
Some difficulties may occur which we do not 
at present foresee. Perhaps a direct tax, in 
the sense of the constitution, can mean noth- 
ing but a tax on something inseparably annex- 
ed to the soil; something capable of apportion- 
ment under all such cii'cumstances. A land 
or a poll tax may be considered of this de- 
scription. * * * In regard to other articles, 
there may possibly be considerable doubt. It 
is sufficient, on the present occasion, for the 
court to be satisfied that this is not a tlirect 
tax contemplated by the constitution, in order 
to affirm the pfesent judgment." 

It will be perceived that each of the justices, 
while suggesting doubt wliether anything but 
a capitation or a land tax was a direct tax 
within the meaning of the constitution, dis- 
tinctly avoided expressing an opinion upon 
that question or laying down a comprehen- 
sive definition, but confined his opinion to the 
case before the court. 

The general line of observation was obvi- 
ously influenced by Mi-. Hamilton's brief for 
the government, in which he said: "The fol- 
lowing are presumed to be the only direct 
taxes: Capitation or poll taxes, taxes on 



LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION^". 



149 



lands and buildings, general assessments, 
whether on the whole property of individuals, 
or on their whole real or personal estate. AH 
else must, of necessity, be considered as indi- 
rect taxes." 7 Hamilton's Works (Lodge's 
Ed.) 332. 

Mr. Hamilton also argued: "If the mean- 
ing of the word 'excise' is to be sought in a 
British statute, it will be found to include the 
duty on carx'iages, which is there considered 
as an 'excise.' * * * An argument results 
from this, though not perhaps a conclusive 
one, yet, where so important a distinction in 
the constitution is to be realized, it is fair to 
seek the meaning of terms in the statutory 
language of that country from which our 
jurisprudence is derived." 7 Hamilton's 
Works (Lodge's Ed.) 333. 

If the question had related to an income tax, 
the reference would have been fatal, as such 
taxes have been always classed by the law of 
Great Britain as direct taxes. 

The above act was to be enforced for two 
years, but before it expired was repealed, as 
was the similar act of May 28, 1796, c. 37, 
which expired August 31, ISOl (1 Stat. 478, 
482). 

By the act of July 14, 1798, when a war 
with France was supposed to be impending, 
a direct tax of two millions of dollars was 
apportioned to the states respectively, in the 
manner prescribed, which tax was to be col- 
lected by officers of the United States, and 
assessed upon "dwelling houses, lands, and 
slaves," according to the valuations and enu- 
merations to be made pursuant to the act of 
July 9, 1798. entitled "An act to provide for 
the valuation of lands and dwelling houses 
and the enumeration of slaves within the 
United States." 1 Stat. 597, c. 75; Id. 580, 
c. 70. Under these acts, every dwelling house 
was assessed according to a prescribed value, 
and the sum of 50 cents upon every slave 
enumerated, and the residue of the sum ap- 
portioned was directed to be assessed upon 
the lands within each state according to the 
valuation made pursuant to the prior act, and 
at such rate per centum as would be suffi- 
cient to produce said remainder. By the act 
of August 2, 1813, a direct tax of three mil- 
lions of dollars was laid and apportioned to 
the states respectively, and reference had to 
the prior act of July 22, 1813, which provided 
that, whenever a direct tax should be laid by 
the authoi'ity of the United States, the same 
should be assessed and laid "on the value of 
all lands, lots of ground with their improve- 
ments, dwelling houses, and slaves, which 
several articles subject to taxation shall be 
enumerated and valued by the respective as- 
sessors at the x'ate each of them is worth in 
money." 3 Stat. 53, c. 37; Id. 22, c. 16. The 
act of January 9, 1815, laid a direct tax of 
six millions of dollars, which was appor- 
tioned, assessed, and laid as in the prior act 
on all lands, lots of grounds with their im- 
provements, dwelling houses, and slaves. 
These acts are attributable to the war of 1812. 



The act of August 6, 1861 (12 Stat. 294, c. 
45), imposed a tax of twenty millions of dol- 
lars, which was apportioned and to be levied 
wholly on real estate, and also levied taxes 
on incomes, whether derived from property 
or profession, ti-ade or vocation (12 Stat. 309). 
And this was followed by the acts of July 1, 
1862 (12 Stat. 473, c. 119) ; March 3, 1863 (12 
Stat. 718, 723, c. 74); June 30, 1864 (13 Stat. 
281, c. 173); March 3, 1865 (13 Stat. 479, c. 
78); March 10, 1866 (14 Stat 4, c. 15); July 
13, 1866 (14 Stat. 137, c. 184); March 2, 1867 
(14 Stat. 477, c. 169); and July 14, 1870 (16 
Stat. 256, c. 255). The differences between 
the latter acts and that of August 15, 1894, call 
for no remark in this connection. These acts 
grew out of the war of the Rebellion, and were, 
to use the language of Mr. Justice Miller, 
"part of the system of taxing incomes, earn- 
ings, and profits adopted during the late war, 
and abandoned as soon after that war was 
ended as it could be done safely." Railroad 
Co. V. Collector, 100 U. S. 595, 598. 

From the foregoing it is apparent (1) that 
the distinction between direct and indirect 
taxation was well understood by the framers 
of the constitution and those who adopted it; 
(2) that, under the state systems of taxation, 
all taxes on real estate or personal property 
or the rents or income thereof were regard- 
ed as direct taxes; (3> that the rules of ap- 
portionment and of uniformity were adopted 
in view of that distinction and those systems; 
(4) that whether the tax on carriages was di- 
rect or indii'ect was disputed, but the tax 
was sustained as a tax on the use and an ex- 
cise; (5) that the original expectation was 
that the power of direct taxation would be 
exercised only in extraordinary exigencies; 
and down to August 15, 1894, this expecta- 
tion has been realized. The act of that date 
was passed in a time of profound peace, and 
it we assume that no special exigency called 
for unusual legislation, and that resort to this 
mode of taxation is to become an ordinary 
and usual means of supply, that fact fur- 
nishes an additional reason for cii'cumspec- 
tion and care in disposing of the case. 

We proceed, then, to examine certain deci- 
sions of this court under the acts of 1861 and 
following years, in which it is claimed that 
this court has heretofore adjudicated that 
taxes like those under consideration are not 
direct taxes, and subject to the rule of ap- 
portionment, and that we are bound to ac- 
cept the rulings thus asserted to have been 
made as conclusive in the premises. Is this 
contention well founded as respects the ques- 
tion now under examination? Doubtless the 
doctrine of stare decisis is a salutary one, 
and to be adhered to on all proper occasions, 
but it only arises in respect of decisions di- 
rectly upon the points in issue. 

The language of Chief Justice Marehall in 
Cohens v. Virginia, 6 Wheat. 264, 399. may 
profitably again be quoted: "It is a maxim 
not to be disregarded that general expres- 
sions in every opinion are to be taken in con- 



.150 



THE POWER OF TAXATION. 



nection with the case in which those expres- 
sions are used. If they go beyond the case, 
they may be respected, but ought not to con- 
trol the judgment in a subsequent suit, when 
the very point is presented for decision. The 
reason of this maxim is obvious. The (piestion 
actually before the coiu't is investigated with 
cai'e. and considered in its full extent. Other 
principles which may serve to illustrate it 
are considered in their relation to the case 
decided, but their possible bearing on all 
other cases is seldom completely investigat- 
ed." 

So in Carroll v. Carroll's Lessee. IG How. 
27.">. 2SG. where a statute of the state of 
^Maryland came under review, Mr. .Tustice 
Curtis said: "If the construction put by the 
court of a state upon one of its statutes was 
not a matter in .iudgment. if it might have 
been decided either way without affecting 
any right brought into question, then, ac- 
cording to the principles of the common law. 
an opinion on such a question is not a deci- 
sion. To make it so, there must have been 
an application of the judicial mind to the 
precise question necessary to be determined 
to fix the rights of the parties, and decide to 
whom the property in contestation belongs. 
And therefore this court, and other courts or- 
ganized under the common law, has never 
held itself bound by any part of an opinion, 
in any case, which was not needful to the as- 
certainment of the right or title in question 
between the parties." 

.\or is the language of Mr. Chief .lustice 
Taney inapposite, as expressed in The Gen- 
esee ("liief. 12 How. 443. wherein it was held 
that the lakes, and navigable waters con- 
necting them, are within the scope of admi- 
ralty and maritime jurisdiction as known 
and understood in the United States when 
the constitution was adopted, and the pre- 
ceding case of The Thomas .Tefferson, 10 
Wheat. 42S, was overruled. The chief jus- 
tice said: "It was under the influence of 
these precedents and this usage that the case 
of The Thomas .Tefferson. 10 Wheat. 428, 
was decided in this court, and the jiu'isdic- 
tion of the courts of admiralty of the United 
States declared to be limited to the ebb and 
flow of the tide. The Orleans v. Phoebus, 11 
Pet. 175, afterwards followed this case, 
merely as a point decided. It is the deci- 
sion in the case of The Thomas .lefferson 
which mainly embarrasses the court in the 
present inquiry. We are sensible of the 
great weight to which it is entitled. But at 
the same time we are convinced that if we 
follow it we follow an erroneous decision into 
which the court fell, when the great impor- 
tance of the question as it now presents it- 
self could not be foreseen, and the subject 
did not therefore receive that deliberate con- 
sideration which at this time would have 
been given to it by the ennneut men who 
presided here when that case was decided. 
For the decision was made in 182r», when the 
commerce on the rivers of the West and on 



the Lakes was in its infancy, and of little 
importance, and but little regarded, com- 
pared with that of the present day. More- 
over, the nature of the questions concerning 
the extent of the admiralty jurisdiction, 
which have arisen iu this court, were not cal- 
culated to call its attention particularly to 
the one we are now considering." 

Manifestly, as this court is clothed with the 
power and intrusted with the duty to main- 
tain the fundamental law of the constitution, 
the discharge of that duty requires it not to 
extend any decision upon a constitutional 
question if it is convinced that error in prin- 
ciple might supervene. 

Let us examine the cases referred to in the 
light of these observations. 

In Insurance Co. v. Soule, 7 Wall. 433, the 
validity of a tax which was described as 
"upon the business of an insurance compa- 
ny," was sustained on the ground that it was 
"a duty or excise," and came within the de- 
cision in Hylton's Case. The arguments for 
the insurance company were elaborate, and 
took a wide range, but the decision rested on 
naiTow ground, and turned on the distincti(m 
between an excise duty and a tax strictly 
so termed, regarding the former a charge for 
a privilege, or on the transaction of business, 
without any necessarj- reference to the 
amount of property belonging to those on 
whom the charge might fall, although it 
might be increased or diminished by the ex- 
tent to which the privilege was exercised or 
the business done. This was in accordance 
with Society v. Coite, ('» Wall. 594, Provident 
Inst. V. ]Massachusetts, Id. 611, and Hamilton 
Co. V. Massachusetts, Id. 032, in which cast's 
there was a difference of opinion on the ques- 
tion whether the tax under consideration was 
a tax on the pro])erty, and not upon the fran- 
chise or privilege. And see Van Allen v. 
Assessoi-s, 3 Wall. 573; Home Ins. Co. v. New 
York, 1.34 U. S. 594, 10 Sup. Ct. 593; Pull- 
man's Palace Car Co. v. Pennsylvania, 141 U. 
S. 18, 11 Sup. Ct. 870. 

In Bank v. Fenno, 8 Wall. .533, a tax was 
laid on the circulation of state banks or na- 
tional banks paying out the notes of individ- 
uals or state banks, and it was held that it 
might well be classed under the head of du- 
ties, and as falling within the same category 
as Soule's Case, 7 Wall. 433. It was declared 
to be of the same nature as excise taxation 
on freight receipts, bills of lading, and pas- 
senger tickets issued by a railroad company. 
Referring to the discussions in the convention 
which framed the constitution, Mr. Chief .lus- 
tice Chase ob.served that what was .said there 
"doubtless shows uncertainty as to the true 
meaning of the term 'direct tax.' but it indi- 
cates also an understanding that direct taxes 
were such as may be levied by capitation 
and on lands and appurtenances, or per- 
haps by valuation and assessment of person- 
al property upon general lists; for these were 
the subjects from which the states at that 
time usually raised their principal supplies." 



LIMIT ATIOXS IMPOSED BY FEDERAL CONSTITUTIOX. 



151 



And in respect of the opinions in Hylton's 
Case the chief justice said: "It may further 
be taken as established upon the testimony 
of Patersou that the words 'direct taxes,' as 
used in the constitution, comprehended only 
capitation taxes and taxes on land, and per- 
Imps taxes on personal property by general 
valuation and assessment of the various de- 
scriptions possessed within the several 
states." 

In National Bank v. U. S., 101 U. S. 1, in- 
volving the con.stitutionality of section 3413 
of the Revised Statutes, enacting that "ev- 
ery national banking association, state bank 
or banker, or association, shall pay a tax of 
ten per centum on the amount of notes of 
iiny town, city, or municipal corporation, paid 
out by them," Bank v. Fermo was cited with 
approval to the point that congress, having 
undertaken to provide a currency for the 
whole country, might, to secure the benefit 
of it to the people, restrain, by suitable 
enactments, the circulation as money of any 
notes not issued under its authority; and 
Mr. Chief Justice Waite, speaking for the 
court, said, "The tax thus laid is not on the 
obligation, but on its use in a particular 
way." 

Scholey v. Rew, 23 Wall. 331, was the case 
of a succession tax, which the court held to 
be "plainly an excise tax or duty" "upon the 
devolution of the estate, or the right to be- 
come beneficially entitled to the same or the 
income thereof iu possession or expectancy." 
It was like the succession tax or a state, 
held constitutional in Mager v. Grima, 8 
IIow. 490; and the distinction between the 
power of a state and the power of the Unit- 
ed States to regulate the succession of prop- 
erty was not referred to, and does not ap- 
pear to have been in the mind of the court. 
The opinion stated that the act of parliament 
from which the particular provision under 
consideration was borrowed had received 
substantially the same construction, and 
cases under that act hold thJit a succession 
duty is not a tax upon income or upon prop- 
erty, but on the actual benefit derived by the 
individual, determined as prescribed. In i-e 
Elwes. 3 Hurl. & N. 719; Attorney General 
V. Earl of Sefton, 2 Hurl. & C. 362, 3 Hurl. 
& C. 1023, and 11 H. L. Cas. 257. 

In Railroad Co. v. Collector. 100 U. S. 595, 
the validity of a tax collected of a corpora- 
tion upan the interest paid by it upon its bonds 
was held to be "essentially an excise on the 
business of the class of corporations men- 
tioned in the statute." And Mr. Justice Mil- 
ler, in delivering the opinion, said: "As the 
sum involved in this suit is small, and the 
law under which the tax iu question was col- 
lected has long since been repealed, the case 
is of little consequence as regards any prin- 
ciple involved in it as a rule of future ac- 
tion." 

All these cases are distinguishable from 
that in hand, and this brings us to consider 
that of Springer v. U. S., 102 u'. S. 58G, chief- 



ly relied on and urged upon us as decisive. 

That was an action of ejectment, brought 
on a tax deed issued to the United States on 
sale of defendant's real estate for income 
taxes. The defendant contended that the 
deed was void, because the tax was a direct 
tax, not levied in accordance with the con- 
stitution. Unless the tax were wholly in- 
valid, the defense failed. 

The statement of the case in the report 
shows that Springer returned a certain 
amount as his net income for the particular 
year, but does not give the details of what 
his income, gains, and' profits consisted in. 

The original record discloses that the in- 
come was not derived in any degree from 
real estate, but was in part professional as at- 
torney at law, and the rest interest ou United 
States bonds. It would seem probable that 
the court did not feel called upon to advert 
to the distinction between the latter and the 
former source of income, as the validity of 
the tax as to either would sustain the action. 

The opinion thus concludes: "Our conclu- 
sions are that direct taxes, within the mean- 
ing of the constitution, are only capitation 
taxes, as expressed in that instrument, and 
taxes on real estate; and that the tax of 
which the plaintiff in error complains is 
vi'ithin the category of an excise or duty." 

While this language is broad enough to 
cover the interest as well as the professional 
earnings, the case would have been more sig- 
nificant as a precedent if the distinction had 
been brought out in the report and comment- 
ed on in arriving at judgment, for a tax on 
professional receipts might be treated as an 
excise or duty, and therefore indirect, when 
a tax on the income of personalty might be 
held to be direct. 

Be this as it may, it is conceded in all 
these cases, from that of Hylton to that of 
Springer, that taxes on land are direct taxes, 
and in none of them is it determined that 
taxes on rents or income derived from laud 
are not taxes on land. 

We admit that it may not unreasonably be 
said that logically, if taxes on the rents, is- 
sues, and profits of real estate are equiva- 
lent to taxes on real estate, and are there- 
fore direct taxes, taxes on the income of per- 
sonal property as such are equivalent to tax- 
es on such property, and therefore direct 
taxes. But we are considering the rule stare 
decisis, and we must decline to hold our- 
selves bound to extend the scope of deci- 
sions,— none of which discussed the question 
whether a tax on the income froiu personalty 
is equivalent to a tax on that personalty, but 
all of which held real estate liable to direct 
taxation only,— so as to sustain a tax on the 
income of realty on the ground of being an 
excise or duty. 

As no capitation or other direct tax was to be 
laid otherwise than in proportion to the popu- 
lation, some other direct tax than a capitation 
tax (and. it might well enough be argued, 
some other tax of the same kind as a capita- 



152 



THE POWEl? OF TAXATIOX. 



tion tax) must be referred to, and it has al- 
ways been considered that a tax upon real 
estate eo nomine, or upon its owners in re- 
spect thereof, is a direct tax, within the 
meaning of the constitution. But is there 
any distinction between the real estate itself 
or its owners in respect of it and the rents 
or income of the real estate coming to the 
owners as the natural and ordinary incident 
of their ownership? 

If the constitution had provided that con- 
gress should not levy any tax upon the real 
estate of any citizen of any state, could it 
be contended that congress could put an an- 
nual tax for five or any other number of 
years upon the rent or mcome of the real es- 
tate? And if, as the constitution now reads, 
no unapportioned tax can be imposed upon 
real estate, can congress without apportion- 
ment' nevertheless impose taxes upon such 
real estate under the guise of an annual tax 
upon its rents or income? 

As. according to the feudal law, the whole 
beneficial interest in the land consisted in 
the right to take the rents and profits, the 
general rule has always been, in the lan- 
guage of Coke, that "if a man seised of land 
in fee by his deed granteth to another the 
profits of those lands, to have and to hold to 
him and his heirs, and maketh livery secun- 
dum formam chartae, the whole land itself 
doth pass. For what is the land but the 
profits thereof?" Co. Lift. 45. And that a 
devise of the rents and profits or c^ the in- 
come of lands passes the land itself both at 
law and in equity. 1 .Jarm. Wills (Gth Ed.) 
*798, and cases cited. 

The requirement of the constitution is that 
no direct tax shall be laid otherwise than 
by apportionment. The prohibition is not 
against direct taxes on land, from which the 
implication is sought to be drawn that in- 
direct taxes on land would be constitutional, 
but it is against all direct taxes; and 
it is admitted that a tax on real estate is a 
direct tax. Unless, therefore, a tax upon 
rents or income issuing out of lands is in- 
trinsically so different from a tax on the 
land itself that it belongs to a wholly differ- 
ent class of taxes, such taxes must be re- 
garded as falling within the same category 
as a tax on real estate eo nomine. The name 
of the tax is unimportant. The real ques- 
tion is, is there any basis upon which to rest 
the contention that real estate belongs to 
one of the two great classes of taxes, and 
the rent or income which is the incident of 
its ownership belongs to the other? We are 
unable to perceive any ground for the alleged 
distinction. An annual tax upon the annual 
value or annual user of real estate appears 
to us the same in substance as an annual 
tax on the real estate, Avhich would be paid 
out of the rent or income. This law taxes 
the income received from land and the 
growth or produce of the land. Mr. Justice 
Paterson observed in Hylton's Case, "land, 
independently of its produce, is of no value," 



and certainly had no thought that direct 
taxes were confined to unproductive land. 

If it be true that by varying the form the 
substance may be changed, it is not easy to 
see that anything would remain of the limita- 
tions of the constitution, or of the rule of 
taxation and representation, so carefully rec- 
ognized and guarded in favor of the citi- 
zens of each state. But constitutional pro- 
visions cannot be thus evaded. It is the sub- 
stance, and not the form, which controls, as 
has indeed been establishetl by repeated de- 
cisions of this court. Thus in Brown v. 
:Maryland. 12 Wheat. 419. 444. it was held 
that the tax on the occupation of an importer 
was the same as a tax on imports, and there- 
fore void. And Chief .Justice Marshall said: 
"It is impossible to conceal from ourselves 
that this is varying the form without vary- 
ing the substance. It is treating a prohibi- 
tion which is general as if it were confined 
to a particular mode of doing the forbidden 
thing. All must i^erceive that attax on the 
sale of an article imported only for sale is a 
tax on the article itself." 

In \Veston v. City Council. 2 Pet. 449, it 
was held that a tax on the income of United 
States securities was a tax on the securities 
themselves, and equally inadmissible. The 
ordinance of the city of Charleston involved 
in that ca.se was exceedingly obscure; but 
the opinions of Mr. Justice Thompson and 
Mr. Justice Johnson, who dissented, make 
it clear that the levy was upon the interest 
of the bonds and not upon the bonds, and 
they held that it was an income tax, and 
as such sustainable: but the majority of the 
court. Chief Justice Marehall delivering the 
opinion, overruled that contention. 

So in Dobbins v. Commissioners, IG Pet. 
43."). it was decided that the income from an 
official position could not be taxed if the 
office itself was exempt. 

In Almy v. California, 24 How. 1G9, it was 
held that a duty on a bill of lading was the 
same thing as a duty on the article which 
it represented; in Railroad Co. v. Jackson, 
7 Wall. 202. that a tax upon the interest 
payable on bonds was a tax not upon the 
debtor, but upon the security; and in Cook 
V. Pennsylvania. 97 U. S. 5GG. that a tax 
upon the amount of sales of goods made by 
an auctioneer was a tax upon the goods sold. 

In Philadelphia & S. S. S. Co. v. Penn- 
sylvania, 122 U. S. 32G, 7 Sup. Ct. 1118, and 
Leloup V. Port of Mobile, 127 U. S. G40, 8 
Sup. Ct. 1380, it was held that a tax on in- 
come received from interstate commerce was 
a tax upon the commerce itself, and there- 
fore unauthorized. And so, although it is 
thoroughly settled that where by way of 
duties laid on the tran.sportation of the sub- 
jects of interstate commerce, and on the re- 
ceipts derived tlierefrom, or on the occupa- 
tion or business of carrying it on. a tax is lev- 
ied by a state on interstate commerce, such 
taxation anu)unts to a regulation of such 
commerce, and cannot be sustained, yet the 



LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 



153 



property in a state belong-ing to a corpora- 
tion, wliether foreign or domestic, engaged 
in foreign or domestic commerce, may be 
taxed; and wlien the tax is substantially a 
mere tax on property, and not one imposed 
on the privilege of doing interstate com- 
merce, the exaction may be sustained. "The 
substance, and not the shadow, determines the 
validity of the exercise of the power." Tele- 
graph Co. V. Adams, 155 U. S. 6SS, 15 Sup. 
Ct. 2GS. 

Nothing can be clearer than that what the 
constitution intended to guard against was the 
exercise by the general government of the 
power of directly taxing persons and prop- 
erty within any state through a majority 
made up from the other states. It is true 
that the effect of requiring direct taxes to be 
apportioned among the states in proportion 
to their population is necessarily that the 
amount of taxes on the individual taxpayer 
in a state having the taxable subject-matter 
to a larger extent in proportion to its popu- 
lation than another state has, would be less 
than in such other state; but this inequality 
must be held to have been contemplated, and 
was manifestly designed to opei*ate to re- 
strain the exercise of the power of direct 
taxation to extraordinary emergencies, and 
to prevent an attack upon accumulated prop- 
erty by mere force of numbers. 

It is not doubted that property owners 
ought to contribute in just measure to the 
expenses of the government. As to the states 
and their municipalities, this is reached large- 
ly through the imposition of direct taxes. 
As to the federal government, it is attained 
in part through excises and indirect taxes 
upon luxuries and consumption genei"ally, to 
which direct taxation may be added to the 
extent the I'ule of apportionment allows. 
And through one mode or the other the en- 
tire wealth of the country, real and personal, 
may be made, as it should be, to contribute 
to the common defense and general welfare. 

But the acceptance of the rule of apportion- 
ment was one of the compromises which 
made the adoption of the constitution possi- 
ble, and secured the creation of that dual 
form of government, so elastic and so strong, 
which has thus far survived in unabated 
vigor. If, by calling a tax indirect when it 
is essentially direct, the rule of protection 
could be frittered away, one of the great 
landmarks defining the boundary between 
the nation and the states of which it is com- 
posed, would have disappeared, and with it 
one of the bulwarks of private rights and 
private property. 

We are of opinion that the law in ques- 
tion, so far as it levies a tax on the rents 
or income of real estate, is in violation of 
the constitution, and is invalid. 

Another question is directly presented by 
the record as to the validity of the tax lev- 
ied by the act upon the income derived from 
municipal bonds. The averment in the bill 
is that the defendant company owns two 
millions of the municipal bonds of the city 



of New York, from which it derives an an- 
nual income of $60,000, and that the directors 
of the company intend to return and pay 
the taxes on the income so derived. 

The co'nstitution contemplates the independ- 
ent exercise by the nation and the state,. 
severally, of their constitutional powers. 

As the states cannot tax the powers, the 
operations, or the property of the United 
States, nor the means which they employ to 
carry their powers into execution, so it has 
been held that the United States have no 
power under the constitution to tax either 
the instrumentalities or the property of a 
state. 

A municipal corporation is the representa- 
tive of the state, and one of the instiiimentali- 
ties of the state government. It was long 
ago determined that the property and reve- 
nues of municipal coi-porations are not sub- 
jects of federal taxation. Collector v. Day,. 
11 Wall. 115; U. S. v. Railroad Co., 17 Wall. 
322, 332. In Collector v. Day it was ad- 
judged that congress had no power, even by 
an act taxing all incomes, to levy a tax upon 
the salaries of judicial officers of a state, for 
reasons similar to those on which it had 
been held in Dobbins v. Commissioners, 16 
Pet. 435, that a state could not tax the sal- 
aries of officers of the United States. Mr. 
Justice Nelson, in delivering judgment, said: 
"The general government and the states, al- 
though both exist within the same territorial 
limits, are separate and distinct sovereignties, 
acting separately and independently of each 
other, within their respective spheres. The 
former, in its appropriate sphere, is supreme; 
but the states, within the limits of their pow- 
ers not granted, or, in the language of the 
tenth amendment, 'reserved,' are as inde- 
pendent of the general government as that 
government within its sphere is independent 
of the states." 

Tliia is quoted in Van Brocklin v. Tennes- 
see, 1*7 U. S. 151, 178, 6 Sup. Ct. 670, and the 
opinion continues: "Applying the same prin- 
ciples, this court in U. S. v. Baltimore & O. 
II. Co., 17 Wall. 322, held that a municipal 
corpoi-ation within a state could not be taxed 
by the United States on the dividends or in- 
terest of stock or bonds held by it in a rail- 
road or canal company, because the munici- 
pal corporation was a representative of the 
state, created by the state to exercise a limit- 
ed portion of its powers of government, and 
therefore its revenues, like those of the state 
itself, were not taxable by the United States. 
The revenues thus adjudged to be exempt 
from federal taxation were not themselves 
appropriated to any specific public use, nor 
derived from property held by the state or by 
the municipal corporation for any specific 
public use, but were part of the general in- 
come of that corporation, held for the public 
use in no other sense than all property and in- 
come belonging to it in its municipal char- 
acter must be so held. The reasons for ex- 
empting all the property and income of a 
state, or of a municipal corporation, which is 



irA 



THE POWER OF TAXATION. 



a political division of the state, from federal 
taxation, equally require the exemption of 
all the property and income of the national 
government from state taxation." 

In Mercantile Bank v. City of New York, 
121 U. S. 138, 102, 7 Sup. Ct. S2G. this court 
said: "Bonds issued by the state of NeAv 
York, or under its authority, by its public 
municipal bodies, are means for carrying; on 
the work of the government, and are not 
taxable, even by the United States, and it is 
not a part of the policy of the government 
which issues them to subject them to taxa- 
tion for its own purposes." 

The (piestion in Bonaparte v. Tax Court, 
104 U. S. 592, was whether the rvjjistered 
public debt of one state, exempt from taxa- 
tion by that state, or actually taxed there, was 
taxable by another state, when owned by a 
citizen of the latter, and it was held that 
there was no provision of the constitution of 
the United States which prohibited such taxa- 
tion. The states had not covenanted that this 
could not be done, whereas, under the fun- 
damental law, as to the power to borrow 
money, neither the UnHed States, on the 
one hand, nor the states on the other, can in- 
terfere with that power as possessed bj' each, 
and an essential element of the sovereignty 
of each. 

The law imder consideration provides "that 
nothing herein contained shall apply to states, 
counties or municipalities." It is contended 
that, although the property or revenues of the 
states or their instrumentalities cannot be 
taxed, nevertheless the income derived frofji 
state, county, and mimicipal securities can 
be taxed. But we think the same want of 
power to tax the proj.erty or revenues of the 
states or their instrumentalities exists in re- 
lation to a tax on the income from their se- 
curities, and for the same reason; and that 
reason is given by Chief Justice Marshall, in 
Weston V. City Council, 2 Pet. 441), 4(JS. 
where he said: "The right to tax the contra^r: 
to any extent, when made, must operate upon 
the power to borrow before it is exercised, 
and have a sensible influence on the contract. 
The extent of this influence depends on the 
will of a distinct government. To any extent, 
however inconsiderable, it is a burthen on 
the oi>erations of government. It may be 
carried to an extent which shall arrest them 
entirely. * * * The tiix on government 
stock is thought by this court to be a tax on 
the contract, a tax on the. power to boiTow 
money on the credit of the T'nited States, and 
consequently to be repugnant to the cons*^'.- 
tution." Applying this language to these 
municipal securities, it is obvious that taxa- 
tion on the interest therefrom would operate 
on the power to borrow before it is exercised, 
and would have a sensible influence on the 
contract, and that the tax in question is a 
tax on the power of the states and their in- 
strumentalities to borrow money, and con- 
sequently repugnant to the constitution. 

Upon each of the other questions argued at 
the bar, to wit: (1) Whether the void pro- 



visions as to rents and income from real es- 
tate invalidated the whole act; (2) whether, 
as to the income from i)ersonal property, as 
such, the act is unconstitutional, as laying di- 
rect taxes; {3) whether any part of the tax. 
if not considered as a direct tax, is invalid 
for want of uniformity on either of the 
grouLids suggested,— the justices who heard 
the argument are equally divided, and there- 
fore no opinion is expressed. 

The result is that the decree of the circuit 
court is reversed and the cause remanded, 
with directions to enter a decree in favor of 
the complainant in respect only of the volun- 
taiy payment of the tax on the rents and in- 
come of the real estate of the defendant com- 
pany, and of that which it holds in trust, and 
on the income from the municipal bonds 
owned or so held by it. 



Mr. .Justice WHITE (dissenting). My brief 
judicial experience has convinced me that the 
custom of tiling long dissenting opinions is 
one "more honored in the breach than in the 
observance." The only pmiiose which an 
elaborate dissent can accomplish, if any. is to 
weaken the effect of the opinion of the ma- 
jority, and thus engender want of confidence 
in the conclusions of courts of bist resort. 
This consideration aa ould impel me to con- 
tent myself with simply recording my dis- 
sent in the present case, were it not for the 
fact that I consider that the result of the 
opinion of the court just announced is to over- 
thi'ow a long and consistent line of decisions, 
and to deny to the legislative department of 
the government the possession of a power con- 
ceded to it by universal consensus for 100 
years, and which has been recognized by re- 
peated adjudications of this court. The issues 
presentc^l are as follows: 

Complainant, as a stockholdei" in a cor- 
poration, avers that the latter will voluntarily 
pay the income tax. levied under the recent 
act of congress; that such tax is unconsti- 
tutional; and that its voluntary i)ayment will 
seriously affect his interest by defeating his 
right to test the validity of the exaction, and 
also lead to a multiplicity of suits against the 
corporation. The prayer of the bill is as fol- 
lows: First, that it may be decreed that the 
provisions known as "The Income Tax Law," 
incorporated in the act of congress passed 
August l.'i. 1SU4, are unconstitutional, null, 
and void; second, that the defendant be re- 
strained from voluntarily complying with 
the provisions of that act by making its re- 
turns and statements, and paying the tax. 
The bill, therefore, presents two substantial 
questions for decision: The right of the plain- 
tiff to relief in tlie form in which he claims 
it, and his right to relief on the merits. 

The decisions of this court hold that the 
collection of a tax levied by the government 
of the United States will not be restrained 
by its courts. Cheatham v. U. S., 92 U. S. 
85; Snyder v. Maiks, 109 U. S. 189, 3 Sup. 
Ct. 157. See, al.so, Elliott v. Swartwout, 10 



LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 



155 



Pot. 137; City of Philadelphia v. Collector, 
5 Wall. 720; Hornthal v. Collector, 9 Wall. 
5G0. The same authorities have established 
the rule that the proper course, in a case 
of illegal taxation, is to pay the tax un- 
der protest or with notice of suit, and then 
bring an action against the officer who col- 
lected it. The statute law of the United 
States, in express terms, gives a party who 
has paid a tax under protest the right to sue 
for its recovery. Rev. St. § 322(5. 

The act of 18(57 forbids the maintenance of 
any suit|('for the purpose of restraining the 
assessment or collection of any tax." The 
provisions of this act are now found in Rev. 
St. § 3224. 

The complainant is seeking to do the very 
thing which, according to the statute and the 
decisions above referred to, may not be done. 
If the corporator cannot have the collection 
of the tax enjoined, it seems obvious that he 
cannot have the corporation enjoined from 
paying it, and thus do by indirection what 
he cannot do directly. 

It is said that such relief as is here sought 
has been frequently allowed. The cases re- 
lied on are Dodge v. Woolsey. 18 How. 331, 
and Hawes v. Oakland, 104 U. S. 4.50. Nei- 
ther of these authorities, I submit, is in point. 
In Dodge v. Woolsey, the main question at 
issue was the validity of a state tax, and 
that case did not involve the act of congress 
to which I have referred. Hawes v. Oak- 
land was a controversy between a stockholder 
and a corporation, and had no reference what- 
ever to taxation. 

The complainant's attempt to establish a 
right to relief upon the ground that this is not 
a suit to enjoin the tax, but one to enjoin the 
corporation from paying it. involves the fal- 
lacy already pointed out, — that is. that a party 
can exercise a right indirectly which he can- 
not assert directly,— that he can compel his 
agent, through process of this court, to violate 
an act of congress. 

The rule which forbids the granting of an 
injunction to restrain the collection of a tax 
is founded on broad reasons of public policy, 
and should not be ignored. In Cheatham v. 
U. S.. supra, which involved the validity of 
an income tax levied under an act of con- 
gress prior to the one here in issue.this court, 
through Mr. .lustice Miller, said: 

"If there existed in the courts, state or na- 
tional, any general power of impeding or 
controlling the collection of taxes, or reliev- 
ing the hardship incident to taxation, the 
very existence of the government might be 
i/iaced in the power of a Hostile judiciary. 
Dows V. City of Chicago. 11 Wall. 108. While 
a free course of remonstrance and appeal is 
allowed within the departments before the 
money is finally exacted, the general govern- 
ment has wisely made the payment of the tax 
claimed, whether of customs or of internal 
revenue, a condition precedent to a resort to 
the courts by the party against whom the 
tax is assessed. In the internal revenue 



branch it has further prescribed that no such 
suit shall be brought until the remedy by ap- 
peal has been tried; and, if brought after this, 
it must be within six months after the de- 
cision on the appeal. We regard this as a 
condition on which alone the government con- 
sents to litigate the lawfulness of the original 
tax. It is not a hard condition. Few gov- 
ernments have conceded such a right on any 
condition. If the compliance with this con- 
dition requires the party aggrieved to pay the 
money, he must do it."' 

Again, in State Railroad Tax Cases, 92 U. 
S. 57.5, the court said : 

"That there might be no misunderstanding 
of the universality of this principle, it was 
expressly enacted, in 1867, that 'no suit for 
the purpose of restraining the assessment or 
collection of any tax shall be maintained in 
any court.' Rev. St. § 3224. And, though this 
was intended to apply alone to taxes levied 
by the United States, it shows the sense of 
congress of the evils to be feared if courts of 
justice could, in any case, interfere with the 
process of collecting the taxes on which the 
government depends for its continued ex- 
istence. It is a wise policy. It is foimded in 
the simple philosophy derived from the ex- 
perience of ages, that the payment of taxes 
has to be enforced by summary and stringent 
means against a reluctant and often adverse 
sentiment; and, to do this successfully, other 
instrumentalities and other modes of proce- 
dure are necessary than those which belong to 
courts of justice. See Cheatham v. Norvell, 
decided at this term; Nichols v. U. S., 7 
Wall. 122; Dows v. City of Chicago, 11 Wall. 
108." 

The contention that a right to equitable 
relief arises from the fact that the corporator 
is without remedy, unless such relief be 
granted him, is, I think, without foundation. 
This court has repeatedly said that the ille- 
i gality of a tax is not ground for the issuance 
of an injimction against its collection, if there 
be an adequate remedy at law open to the 
payer (Dows v. City of Chicago, 11 Wall. 
108; Hauuewinkle v. Georgetown, 15 Wall. 
547; Board v. McComb, 92 U. S. 531; State 
Railroad Tax Cases, 92 U. S. .575; Union Pa- 
cific Ry. Co. V. Cheyenne, 113 U. S. 51G, 5 
Sup. Ct. GOl; Milwaukee v. Koeffler, IIG U. 
S. 219, 6 Sup. Ct. 372; Express Co. v. Seibert, 
142 U. S. 339, 12 Sup. Ct. 2.50), as in the case 
where the state statute, by which the tax is 
imposed, allows a suit for its recovery after 
payment under protest (Shelton v. Piatt, 139 
U. S. .591, 11 Sup. Ct. (54G; Allen v. Car Co., 
139 U. S. (558, 11 Sup. Ct. (582). 

The decision here is that this court will al- 
low, on the theoi-y of equitable right, a rem- 
edy expressly forbidden by the statutes of 
the United States, though it has denied the 
existence of such a remedy in the case of a 
tax levied by a state. 

Will it be said that, although a stockhold- 
er cannot have a corporation enjoined from 
paying a state tax where the state statute 



156 



THE POWER OF TAXATION. 



gives him the right to sue for its recovery, 
yet when the United States not only gives 
him such right, but, in addition, forbids the 
issue of an injunction to prevent the pay- 
ment of federal taxes, the court will allow to 
the stockholder a remedy against the United 
States tax which it refuses against the state 
tax? 

The assertion that this is only a suit to 
prevent the voluntary payment of the tax sug- 
gests that the court may, by an order operat- 
ing directly upon the defendant cori)oratlon, 
accomplish a result which the statute mani- 
festly intended should not be accomplished 
by suit in any court. A final judgment for- 
bidding the corporation from paying the tax 
will have the effect to prevent its collection, 
for It could not be that the court would per- 
mit a tax to be collected from a corporation 
which it had enjoined from paying. I take 
it to be beyond dispute that the collection of 
the tax in question cannot be restrained by 
any proceeding or suit, whatever its form, di- 
rectly against the officer charged with the 
duty of collecting such tax. Can the stat- 
ute be evaded, in a suit between a corpora- 
tion and a stockholder, by a judgment forbid- 
ding the former from paying the tax, the col- 
lection of which cannot be restrained by suit 
in any court? Suppose, notwithstanding the 
final judgment just rendered, the collector 
proceeds to collect from the defendant corpo- 
ration the taxes which the court declares, in 
this suit, cannot be legally assessed upon it. 
If that final judgment is sufficient in law 
to justify resistance against such collection, 
then we have a case in which a suit has been 
maintained to restrain the collection of taxes. 
If such judgment does not conclude the col- 
lector, who was not a party to the suit in 
which it was i-euderecl, then it is of no value 
to the plaintiff. In other words, no form of 
expression can conceal the fact that the real 
object of this suit is to prevent the collection 
of taxes imposed by congress, notwithstand- 
ing the express statutory requirement that 
"no suit for the pui-pose of restraining the 
assessment or collection of any tax shall be 
maintained in any court." Either the deci- 
sion of the constitutional question is nec- 
essary or it is not. If it is necessary, then 
the court, by way of granting equitable re- 
lief, does the very thing which the act of 
congress forbids. If it is unnecessary, then 
the court decides the act of congress here as- 
serted unconstitutional, without being obliged 
to do so by the requirements of the case be- 
fore it. 

This brings me to the consideration of the 
merits of the cause. 

The constitutional provisions respecting 
federal taxation are four in number, and are 
as follows: 

"(1) Representatives and direct taxes shall 
be apportioned among the several states, 
which may be included within this Union, 
according to their respective numbers, which 
sJiall be determined by adding to the whole 



number of free persons, including those 
bound to service for a term of years and ex- 
cluding Indians not taxed, three-tifths of all 
other pei-sons." Article 1, § 2, cl. 3. The 
fourteenth amendment modified this provi- 
sion, so that the whole number of persons in 
each state should be counted, "Indians not 
taxetl" excluded. 

"(2) The congress shall have power to lay 
and collect taxes, dutie.s. imposts, and excises, 
to pay the debts and provide for the common 
defence and general welfare of the United 
States; but all duties, imposts, an^ excises 
shall be uniform throughout the United 
States." Article 1, § 8, cl. 1. 

"(3) No capitation or other direct tax sha'l 
be laid, unless in proportion to the census 
or enumeration hereinbefore directed to be 
taken." Article 1. § 9, cl. 4. 

"(4) No tax or duty shall be laid on artiel?s 
expoi-tc<l from any state." Article 1, § 9. cl. 5. 

It has been suggested that, as the above 
provisions ordain the apportionment of direct 
taxes, and authorize congress to "lay and 
collect taxes, duties, imposts,, and excises," 
therefore there is a class of taxes which are 
neither direct, and are not duties, imposts, 
and excises, and are exempt from the rule 
of apportionment on the one hand, or of uni- 
formity on the other. The soundness of this 
suggestion need not be discussed, as the 
words, "duties, imposts, and excises," in con- 
junction with the reference to direct taxes, 
adequately convey all power of taxation to 
the fedei-al government. 

It is not necessary to pursue this branch of 
the argument, since it is unquestioned that 
the provisions of the constitution vest in the 
United States plenary powers of taxation; 
that is, all the powers which belong to a gov- 
ernment as such, except that of taxing ex- 
ports. The court in this case so says, and 
quotes approvingly the language of this court, 
speaking through Mr. Chief Justice Chase, iu 
License Tax Cases, 5 Wall. 4G2, as follows: 

"It is ti'ue that the power of congress to 
tax is a very extensive power. It is given 
in the constitution with only one exception 
and only two qualifications. Congress cannot 
tax exports, and it must impose direct taxes 
by the rule of apportionment, and indirect 
taxes by the rule of uniformity. Thus lim- 
ited, and thus only, it reaches evei*y subject 
and may be exercised at discretion." 

In deciding, then, the question of whether 
the income tax violates the constitution, wi 
have to determine, not the existence of i. 
power in congress, but whether an admitted- 
ly unlimited power to tax (the income tax 
not being a tax on exports) has been used ac- 
cording to the restrictions, as to methods for 
its exercise, found in the constitution. Not 
power, it must be borne in mind, but the 
manner of its use, is the only issue presented 
in this case. The limitations in regard to the 
mode of direct taxation imposed by the con- 
stitution are that capitation and other direct 
taxes shall be apportioned among the states 



LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION". 



157 



■according to their respective numbers, while 
duties, imposts, and excises must be uniform 
throughout the United States. The meaning 
of the word "uniform" in the constitution 
need not be examined, as tlie court is divided 
upon that subject, and no expression of opin- 
ion thereon is conveyed or intended to be 
conveyed in this dissent. 

In considering whether we are to regard an 
income tax as "direct"' or otherwise, it wjll, 
in my opinion, serve no useful purpose, at 
this late period of our political history, to 
seek to ascertain the meaning of the word 
"direct" in the constitution by resorting to 
the theoretical opinions on taxation found in 
the writings of some economists prior to thfi 
adoption of the constitution or since. These 
■economists teach that the question of whether 
a tax is du-ect or indirect depends not upon 
whether it is directly levied upon a person, 
but upon whether, when so levied, it may be 
ultimately shifted from the pereon in question 
to the consumer, thus becoming, while direct 
in the method of its application, indu-ect in 
its final results, because it reaches ti:.e per- 
son who really pays it only indirectly. I say 
it will serve no useful puriJose to examine 
these writers, because, whatever may have 
been the value of their opinions as to the 
economic sense of the word "direct," they 
•cannot now afford any criterion for deter- 
mining its meaning in the constitution, inas- 
much as an authoritative and coaclusive con- 
struction has been given to that term, as 
there used, by an interpretation adopted 
shortly after the formation of the constitution 
l)y the legislative department of the govern- 
ment, and approved by the executive; by the 
adoption of that interpretation from that time 
to the present without question, and its ex- 
emplification and enforcement in many legis- 
lative enactments, and its acceptance by the 
authoritative text writers on the constitu- 
tion; by the sanction of that interpretation, in 
a decision of this court rendered shortly after 
the constitution was adopted; and finally by 
the repeated reiteration and affirmance of 
that interpretation, so that it has become im- 
bedded in our jurisprudence, and therefore 
may be considered almost a part of the writ- 
ten constitution itself. 

Instead, therefore, of following counsel in 
their references to economic writers and their 
discussion of the motives and thoughts which 
may or may not have been present in the 
minds of some of the framers of the con- 
stitution, as if the question before us were 
one of first impression, I shall confine myself 
to a demonstration of the truth of the propo- 
sitions just laid down. 

In 1794 (1 Stat. 373, c. 45) congress levied, 
without reference to apportionment, a tax on 
carriages "for the conveyance of persons." 
The act provided "that there shall be levied, 
collected, and paid upon all carriages for the 
conveyance of persons which shall be kept 
by, or for any person for his or her own use, 
or to be let out to hire, or for the conveying 



of passengers, the several duties and rates 
following"; and then came a yearly tax on 
every "coach, chariot, phaeton, and coachee, 
every four-wheeled and every two-wheeled 
top carriage, and upon every other two-wheel- 
ed carriage," varying in amount according to 
the vehicle. 

The debates which took place at the passage 
of that act are meagerly preserved. It may, 
however, be inferred from them that some 
considered that whether a tax was "direct" 
or not in the sense of the constitution de- 
pended upon whether it was levied on the ob- 
ject or on its use. The carriage tax was de- 
fended by a few on the ground that it was a 
tax on consumption. Mr. Madison opposed 
it as unconstitutional, evidently upon the con- 
ception that the word "direct" in the constitu- 
tion was to be considered as having the same 
meaning as that which had been attached to 
it by some economic writers. His view was 
not sustained, and the act passed by a large 
majority, — 49 to 22. It received the approval 
of Washington. The congress which passed 
this law numbered among its members many 
who sat in the convention which framed the 
constitution. It is moreover safe to say that 
each member of that congress, even although 
he had not been in the convention, had, in 
some way, either directly or indirectly, been 
an infiuential actor in the events which led 
up to the birth of that instrument. It is im- 
possible to make an analysis of this act which 
will not show that its provisions constitute 
a rejection of the economic construction of 
the word "direct," and this result equally fol- 
lows, whether the tax be treated as laid on 
the carriage itself or on its use by the owner. 
If viewed in one light, then the imposition 
of the tax on the owner of the carriage, be- 
cause of his ownership, necessarily constitut- 
ed a direct tax under the rule as laid down 
by economists. So, also, the imposition of a 
burden of taxation on the owner for the use 
by him of his own carriage made the tax di- 
rect according to the same rule. The tax hav- 
ing been imposed without apportionment, it 
follows that those who voted for its enact- 
ment must have given to the word "direct," 
in the constitution, a different significance 
from that which is affixed to it by the econo- 
mists referred to. 

The validity of this carriage tax was 
considered by this court in Hylton v. U. S., 
3 Dall. 171. Chief Justice Ellsworth and Mr. 
Justice Gushing took no part in the decision. 
Mr. Justice Wilson stated that he had, in 
the circuit court of Virginia, expressed his 
opinion in favor of the constitutionality of the 
tax. Mr. Justice Chase, Mr. Justice Pater- 
son, and Mr. Justice Iredell each expressed 
the reasons for his conclusions. The tax, 
though laid, as I have said, on the car- 
riage, was held not to be a direct tax un- 
der the constitution. Two of the judges 
who sat in that case (Mr. Justice Pater- 
son and Mr. Justice Wilson) had been dis- 
tinguished members of the constitutional con- 



lo8 



THE POWEI? OF TAXA'iroX. 



veiition. Excerpts from tue observations of 
the justices are ji'ven in tlie opinion of the 
court. Mr. Justice Paterson. in addition to 
the languajre there quoted, spoke as follows 
(the italics being mine): 

"/ never enter, ained a doubt that the prin- 
cipal — / will not say the only — objects thai the 
framers of the cons'ifution contempkited as 
falling within the rule of apportionment were 
a capitation tax and a tax on land. Local 
considerations and the particular circmnstan- 
ces and relative situation of the states natu- 
rally lead to this view of the subject. The pro- 
vision was made in favor of the Southern 
states. They possessed a large numl)er of 
slaves. They had extensive tracts of terri- 
tory, thinly settled, and not very productive. 
A majority of the states had but few slaves, 
and several of them a limited territory, well 
settled, and in a high state of cultivation. 
The Southern states, if no provision had been 
introduced in the constitution, would have 
been wholly at the mercy of the other states. 
Congress, in such case, might ta.x slaves at dis- 
cretion or arbitrarily, and land in every part of 
the Union after the same rate or measure, — 
so much a head in the first instance, and so 
much an acre in the second. To guard them 
against imposition in these particulars was 
the reason of introducing the clause in the con- 
stitution which directs that representatives 
and direct taxes shall be apportioned among 
the states according to their respective num- 
bers." 

It is evident that Mr. Justice Chase coin- 
cided with these views of Mr. Justice Pater- 
son, though he was perhaps not quite so firm- 
ly settled in his convictions, for he said: 

"I am inclined to tliink— but of this I do 
not give a judicial opinion— that the direct 
taxes contemplated by the constitution are 
only two, to wit, a capitation or poll tax 
simply, without regard to property, profes- 
sion, or any other circumstances, and the tax 
tin land. 1 doubt whether a tax by a general 
assessment of personal property within the 
United States is included within the term 'di- 
rect tax.' " 

Mr. Justice Iredell certainly entertained 
similar views, since he said: 

"Some difficulties may occur which we do 
not at present foresee. Perhaps a direct tax 
in the sense of the coustitatiou can mean 
iiotliing but a tax on something inseparably 
annexed to the soil; something capable of ap- 
portionment under all such circumstances. A 
laud or a poll tax may be considered of this 
description. * * * iji regard to other ar- 
ticles there may possibly be considerable 
doubt." 

These opinions stiougly indicate that the 
real convictions of the justices were that only 
capitation taxes and taxes on land Avere direct 
within the meaning of the constitution, but 
they doubted whether some other objects of 
a kindred natin-e might not be embraced in 
that word. Mr. Justice Paterson had no doubt 
whatever of the limitation, and Justice Ire- 



dell's doubt seems to refer only to things 
which were inseparably connected with the 
soil, and which might therefore be considered, 
in a certain sense, as real estate. 

That case, however, established that a tax 
levied without apportionment on an object of 
personal property was not a "direct tax" with- 
in the meaning of the constitution. There 
can be no doubt that the enactment of this 
tax and its interpretation by the court, as 
well as the suggestion, in the opinions deliv- 
ered, that nothing was a "direct tax," within 
the meaning of tlip constitution, but a capita- 
tion tax mid a tax on land, was all directly 
in contiict with the views of those who 
claimed at the time that the word "direct" in 
the constitution was to be interpreted accord- 
ing to the views of economists. This is con- 
clusively shown by Mr. Madison's language. 
He asserts not only that the act had been 
passed contrary to the constitution, but that 
the decision of the court was likewise in vio- 
lation of that instrument. Ever since the 
announcement of the decision in that case, the 
legislative department of the government has 
accepted the opinions of the justices, as well 
as the decision itself, as conclusive in regard 
to the meaning of the word "direct"; and it 
has acted upon that assumption in many in- 
stances, and always with executive indorse- 
ment. All the acts passed levying direct tax- 
es confined them practically to a direct levy 
on land. True, in some of these acts a tax 
on slaves was included, but this inclusion, as 
has been said by this court, was probably 
based upon the theory that these were in 
some respects taxable along with the land, and 
therefore their inclusion indicated no depar- 
ture by congress from the meaning of the 
word "direct" necessarily resulting from the 
decision in the Hylton Case, and which, 
moreover, had been expressly elucidated and 
suggested as being practically limited to capi- 
tatiou taxes and taxes on real estate by the 
justices who expressed opinions in that case. 

Thei^e acts imposing direct taxes having 
been confined in their operation exclusively to 
real estate and slaves, the subject-matters in- 
dicated as the proper objects of direct taxa- 
tion in the Hylton Case are the strongest pos- 
sible evidence that this suggestion was ac- 
cepted as conclusive, and had become a set- 
tled rale of law. Some of these acts were 
passed at times of great public necessity, 
when revenue was urgently required. The 
fact that no other subjects were selected for 
the purposes of direct taxation, except those 
which the judges in the Hylton Case had sug- 
gested as appropi'iate therefor, seems to me to 
lead to a conclusion which is al>solutely irre- 
sistible.— that the meaning thus affixed to the 
word "direct" at the very formation of the 
government was considered as having been as 
irrevocably determined as if it had been writ- 
ten in the constitution in express terms. As 
I have already observed, every authoritative 
writer who has discussed the constitution 
from that date down to this has ti-eated this 



LIMITATIONS IMPOSED BY FEDERAL CONSTITUTIOX. 



159 



judicial and legislative ascertaiumeut of the 
meauiug of the word "direct" iu the constitu- 
tion as jiiving it a constitutional significance, 
without reference to the theoretical distinction 
between "direct" and "indirect," naade by 
some economists prior to the constitution or 
since. This doctrine has become a part of 
the hornbook of American constitutional inter- 
pretation, has been taught as elementary in 
all the law schools, and has never since then 
been anywhere autlioritatively questioned. 01 
course, the text-books may conflict in some 
particulars, or indulge in reasoning not al- 
ways consistent, but as to the effect of the 
decision in the Hylton Case and the meaning 
of the word "direct," in the constitution, re- 
sulting therefrom, they are a unit. I quote 
briefly from them. 

Chancellor Kent, in his Commentaries, thus 
states the principle: 

"The construction of the powers of congress 
relative to taxation was brought before the su- 
preme coiu-t, in 1796, in the case of Hylton v. U. 
S. By the act of .June 5, 1794, congress laid a 
duty upon carriages for the conveyance of per- 
sons, and the question was whether this was 
a 'direct tax,' within the meaniug of the con- 
stitution. If it was not a direct tax, it was 
admitted to be rightly laid, ander that part 
of the constitution which declares that all du- 
ties, imposts, and excises shall be uniform 
throughout the United States; but, if it was 
a direct tax, it was not constitutionallv laid, 
for it must then be laid according to the cen- 
sus, under that part of the constitution which 
declares that direct taxes shall be apportioned 
among the several states according to num- 
bers. The circuit court in Virginia was di- 
vided in opinion on the question, but on ap- 
peal to the supreme court it was decided that 
the tax on caji-riages was not a direct tax, 
within the letter or meaniug of the constitu- 
tion, and was therefore constitutionally laid. 

"The question was deemed of very great 
importance, and was elaborately argued. It 
was held that a general power was given to 
congress to lay and collect taxes of every 
kind or nature, without any restraint. They 
had plenary power ever every species of tax- 
able property, e.xcept exports. But there 
were two rules prescribed for their goveru- 
ment, — the rule of uniformity, and the rule 
of apportionment. Three kinds of taxes, viz. 
juties, imposts, and excises, were to be laid 
by the first rule; and capitation and other 
direct taxes, by the second rule. If there 
were any other species of taxes, as the court 
seemed to suppose there might be, that were 
not direct, and not included within the words 
'duties, imposts, or excises," they were to be 
laid by the rule of uniformity or not, as con- 
gress should think proper and reasonable. 

"The constitution contemplated no taxes as 
direct taxes but such as congress could lay 
in proportion to the census; and the rule of 
apportionment could not reasonably apply 
to a tax; on carriages, nor could the tax on 
carriages be laid by that rule without very 



great inequality and injustice. If two states, 
equal in census, were each to pay 8,000 
dollars by a tax on carnages, and in one 
state there were 100 carriages and in an- 
other 1,000, the tax on each carriage would 
be ten times as much in one state as in the 
other. While A. in the one state, would pay 
for his carriage eight dollars, B., in the other 
state, would pay for his carriage eighty dol- 
lars. In this way it was shown by the court 
that the notion that a tax on carriages was 
a 'direct tax,' within the purview of the con- 
stitution, and to be apportioned according 
to the census, would lead to the grossest 
abuse and oppression. This argument was 
conclusive against the constniction set up, 
and the tax on carriages was considered as 
included within the power to lay duties; 
and the better opinion seemed to be that the 
diroct taxes contemplated by the constitution 
were only two, viz. a capitation or poll tax anl 
a tax on land." Kent. Comm. pp. 25-i-'256. 
Story, speaking on the same subject, says: 
"Taxes on lands, houses, and other perma- 
nent real estate, or on parts or appurtenan- 
ces thereof, have always been deemed of the 
same character; that is, direct taxes. It has 
been seriously doubted if, in the sense of the 
constitution, any taxes are direct taxes ex- 
cept those on polls or on lands. Mr. Justice 
Chase, in Hylton v. U. S., 3 Dall. 171, said: 'I 
am inclined to think that the direct taxes con- 
i\4nplated by the constitution are only two, 
viz., a capitation or poll tax simply, with- 
out regard to property, profession, or other 
circumstances, and a tax on land. I doubt 
whether a tax by a general assessment of 
personal property within the United States 
is included within the term "direct tax." ' Mr. 
Justice Paterson in the same case said; 'It 
is not necessary to determine whether a tax 
on the produce of land be a direct or an in- 
direct tax. Perhaps tlie immediate product 
of land, in its original and crude state, ought 
to be considered as a part of the land itself. 
When the produce is converted into a manu- 
facture it assumes a new shape, etc. Wheth- 
er "direct taxes," in the sense of the consti- 
tution, comprehend any other tax than a 
capitation tax, or a tax on land, is a ques- 
tionable point, etc. I never entertained a 
doubt that the principal — I will not say the 
only — objects that the framers of the consti- 
tution contemplated, as falling within the 
laile of apportionment, were a capitation tax 
and a tax on land.' And he proceeded to 
state that the rule of apportionment, both as 
regards representatives and as regards direct 
taxes, was adopted to guard the Southern 
states against undue impositions and oppres- 
sions in the taxing of slaves. Mr. Justice Ire- 
dell in the same case said: 'Perhaps a direct 
tax, in the sense of the constitution, can mean 
nothing but a tax on something inseparably 
annexed to the soil; something capable of 
apportionment under all such circumstances. 
A land or poll tax may be considered of this 
description. The latter is to be considered so, 



100 



tup: power of taxation. 



particularly under the present constitution, on 
account of the slaves in the Southern states, 
who give a ratio in the representation in the 
proportion of three to tive. Either of these is 
capable of an apportionment. In regard to 
other articles, there may possibly be consid- 
erable doubt.' The reasoning of the Federal- 
ists seems to lead to the same result." Story, 
C>)nst. § 952. 

Cooley, in his work on Constitutional Lim- 
itations (page 595), thus tersely states the 
rule: 

"Direct taxes, when laid by congress, must 
be apportioned among the several states ac- 
cording to the representative population. The 
term 'direct taxes,' as employed in the con- 
stitution, has a technical meaning, and em- 
braces capitation and land taxes only." 

Miller on the Constitution (section 2S2a) 
thus puts it: 

"Under the provisions already quoted, the 
■c|uestiou came up as to what is a 'direct 
tax,' and also upon what property it is to be 
levied, as distinguished from any other tax. 
In regard to this it is sutfieient to say that it 
is believed that no other than a capitation 
tax of so much per bead and a land tax is 
a 'direct tax,' within the meaning of the 
constitution of the United States. All other 
taxes, except imposts, are proi)erly called 
'excise taxes.' 'Direct taxes,' within the 
meaning of the constitution, are only capi- 
tation taxes, as expressed in that instru- 
ment, and taxes on real estate." 

In Pomeroy's Constitutional Law (section 
2S1) we read as follows: 

"It becomes necessary, therefore, to inquire 
a little more particularly what are direct 
and what indirect taxes. Few cases on the 
general question of taxation have arisen and 
been decided by the supreme court, for the 
simple reason that, until the past few years, 
the United States has generally been able to 
obtain all needful revenue from the single 
source of duties upon imports. There can 
be no doubt, however, that all the taxes pro- 
vided for in the internal revenue acts now 
in operation are Indirect. 

"This subject came before the supreme 
court of the United States in a very early 
case,— Ilylton v. U. S. In the year 1794, 
congress laid a tax of ten dollars on all car- 
riages, and the rate was thus made uniform. 
The validity of the statute was disputed. It 
was claimed that the tax was direct, and 
should have been apiwrtioned among the 
suites. The court decided that this tax was 
not direct. The reasons given for the de- 
cision are unanswerable, and would seem to 
cover all the provisions of the present inter- 
nal revenue laws." 

Hare, in his treatise on American Constitu- 
tional Law (pages 249, 2.50), is to the hke 
effect: 

"Agreeably to section 9 of article 1, para- 
graph 4, 'no capitation or other direct tax 
shall be laid except in proportion to the cen 
sus oi= enumeration hereinbefore directed tC" 



be taken'; while section 3 of the same ar- 
ticle requires that representation and direct 
taxes shall be apportioned among the sev 
eral states * * * according to their re- 
spective numbers. 'Direct taxes,' in the sensfl 
of the constitution, are poll taxes and taxer 
on land." 

Burroughs on Taxation (page 502) takes 
the same view: 

"Direct Taxes. The kinds of taxation au- 
thorized are both direct and indirect. The 
construction given to the expression 'direct 
taxes' is that it includes only a tax on land 
and a poll tax, and this is in accord with the 
views of writers up<m political economy." 

Ordroneaux, in his Constitutional Legisla- 
tion (page 225), says: 

"Congress having been given the polver 'to 
laj' and collect taxes, duties, imposts, and 
excises,' the above three provisions are limi- 
tations upon the exercise of this authority: 

"(1) By distinguishing between direct and 
indirect taxes as to their mode of assessment; 

"(2) By establishing a permanent freedom 
of trade between the states; and 

"(3) By prohibiting anv discrimination in 
favor of particular states, through revenue 
laws establishing a preference between their 
ports and those of the others. 

"These provisions should be read together, 
because they are at the foundation of our 
system of national taxation. 

"The two rules prescribed for the govern- 
ment of congress in laying taxes are those 
of apportionment for direct taxes and mii- 
formity for indirect. In the first class are 
to be found capitation or poll taxes and taxes 
on land; in the second, duties, imposts, and 
excises. 

"The provision relating to capitation taxes 
was made in favor of the Southern states, 
and for the protection of slave pro^^erty. 
While they possessed a large number of per- 
sons of this class, they also had extensive 
tracts of spai-sely settled and unproductive 
lands. At the same time an opposite condi- 
tion, both as to land territory and popula- 
tion, existed in a majority of the other states. 
Were congress permitted to tax slaves and 
land in all parts of the country at a uniform 
rate, the Southern slave states must have, 
been placed at a great disadvantage. Hence, 
and to guard against this inequality of cir- 
cumstances, there was introduced into the 
constitution the further provision that 'repre- 
sentatives and direct taxes shall be appor- 
tioned among the stjites according to their 
respective numbers.' This changed the basis 
of direct taxation from a strictly monetary 
standard, which could not, equitably, be made 
uniform throughout the country, to one rest- 
ing upon population as the measure of repre- 
sentation. But for this congress might have 
taxed slaves arbitrarily, and at its pleasure, 
as so much property, and land uniformly 
throughout the Union, i-egardless of differ- 
ences in productiveness. It is not strange, 
therefore, that in Hyltou v, U. S. the court 



LIMITATIONS IMPOSED BY FEDERAL COI^STITUTIOX. 



161 



said that: 'The rule of apportionmeut is rad- 
ically wrong, and cannot be supported by 
any solid reasoning. It ought not, therefore, 
to be extended by construction. Apportion- 
ment is an operation on states, and involves 
valuations and assessments vphich are arbi- 
trary, and should not be resorted to but in 
case of necessity.' 

"Direct taxes being now well settled in 
their meaning, a tax on carriages kept for the 
use of the owner is not a capitation tax; nor 
a tax on the business of an insurance com- 
pany; nor a tax on a bank's circulation; nor 
a tax on income; nor a succession tax. The 
foregoing are not, properly speaking, direct 
taxes within the meaning of the constitution, 
but excise taxes or duties." 

Black, writing on Constitutional Law, says: 

"But the chief difficulty has arisen in de- 
termining what is the difference between di- 
rect taxes and such as are indirect In gen- 
eral usage, and according to the terminology 
of political economy, a direct tax is one which 
is levied upon the person who is to pay it, or 
upon his land or personalty, or his business 
or income, as the case may be. An indirect 
tax is one assessed upon the manufacturer 
or dealer in the particular commodity, and 
paid by him, but which really falls upon the 
consumer, since it is added to the market 
price of the commodity which he must pay. 
But the course of judicial decision has deter 
mined that the term 'direct,' as ^here applied 
to taxes, is to be taken in a more restricted 
sense. The supreme court has ruled that only 
land taxes and capitation taxes are 'direct,' 
and no others. In 1794 congress levied a tax 
of ten dollars on all c-arriages kept for use, 
and it was held that this was not a direct 
tax. And so also an income tax is not to 
be considered direct. Neither is a tax on 
the circulation of state banks, nor a succes- 
sion tax, imposed upon every 'devolution of 
title to real estate.' " Op. cit. p. 162. 

Not only have the other departments of the 
government accepted the significance attach- 
ed to the word "direct" in the Hylton Case 
by their actions as to direct taxes, but they 
have also relied on it as conclusive in their 
dealings with indirect taxes by levying them 
solely upon objects which the judges in that 
case declared were not objects of direct tax- 
ation. Thus the affirmance by the federal 
legislature and executive of the doctrine es- 
tablished as a result of the Hylton Case has 
been twofold. 

From 1861 to 1870 many laws levying taxes 
on income were enacted, as follows: Act 
Aug. 1861 (12 Stat. 309, .311); Act July, 1862 
(12 Stat. 473, 475) ; Act March, 1863 (12 Stat. 
718, 723); Act June, 1864 (13 Stat. 281, 285); 
Act March, 1865 (13 Stat. 479, 481); Act 
March, 1866 (14 Stat. 4, 5); Act July, 1866 
(14 Stat. 137-140) ; Act March, 1867 (14 Stat. 
477-480); Act July, 1870 (16 Stat. 256-261). 

The statutes above referred to all cover 
income and eveiy conceivable source of rev- 

SMITH, CONST. LAW — 1 1 



enue fi-om which it could result, — rentals 
from real estate, products of personal prop- 
erty, the profits of business or professions. 

The validity of these laws has been tested 
before this court. The first case on the sub- 
ject was that of Insurance Co. v. Soule, 7 
Wall. 443. The controversy in that case 
arose under the ninth section of the act of 
July 13, 1866 (14 Stat. 137, 140), which ira- 
pi^sed a tax on "all dividends in scrip and 
money, thereafter declared due, wherever 
and whenever the same shall be payable, 
to stockholders, policj' holders, or depositors 
or parties Avhatsoever, including non-resi- 
dents whether citizens or aliens, as part of 
the earnings, incomes or gains of any bahk, 
trust company, savings institution, and of 
any fire, marine, life, or inland insurance 
company, either stock or mutual, under what- 
ever name or style known or called in the 
United States or territories, whether specially 
incorporated or existing under general laws, 
and on all undistributed sum or sums made 
or added during the year to their surplus or 
contingent funds." 

It will be seen that the tax imposed was 
levied on the income of insurance companies 
as a unit, including every possible source of 
revenue, whether from personal or real prop- 
erty, from business gains or otherwise. The 
case was presented here on a certificate of 
division of opinion below. One of the ques- 
tions propounded was "whether the taxes 
paid by the plaintiff and sought to be recov- 
ered in this action are not direct taxes, with- 
in the meaning of the constitution of the 
United States." The issue, therefore, neces- 
sarily brought before this court was whether 
an act imposing an income tax on every pos- 
sible source of revenue was valid or invalid. 
The case was carefully, ably, elaborately, and 
learnedly argued. The brief on behalf of 
the company, filed by Mr. Wills, was sup- 
ported by another, signed by Mr. W. O. Bart- 
lett, which covered every aspect of the con- 
tention. It rested the weight of its argu- 
ment against the statute on the fact that it 
included the rents of real estate among the 
sources of income taxed, and therefore put a 
direct tax upon the laud. Able as have been 
the arguments at bar in the present case, an 
examination of those then presented will dis- 
close the fact that every view here urged was 
there pressed upon the court with the great- 
est ability, and after exhaustive research, 
equaled, but not surpassed, by the eloquence 
and learning which has accompanied the pres- 
entation of this case. Indeed, it may be 
said that the principal authorities cited and 
relied on now can be found in the arguments 
which were then submitted. It may be add- 
ed that the case on behalf of the government 
was presented by Attorney General Evarts. 

The court answered all the contentions by 
deciding the generic question of the validity 
of the tax, thus passing necessarily upon ev- 
ery issue raised, as the whole necessarily in- 



162 



THE rOWEL? OF TAXATION. 



eludes every one of its parts. I quote the 
reasoning applicable to the matter now in 
hand: 

"The sixth question is: "Whether the taxes 
paid by the plaintiff, and sought to be recov- 
ered back in this action, are not direct taxes, 
within the meaning of the constitution of the 
rnited States.' in considering this subject 
it is proper to advert to the several provi- 
sions of the constitution relating to taxation 
by congress. 'Representatives and direct 
taxes shall be apportioned among the several 
states whif li sliall be included in this Union 
according to their respective numbers,' etc. 
'Congress shall have power to lay and collect 
taxf^s. duties, imposts, and excises, to pay the 
debts and provide for the common defence 
and general welfare of the United States; 
but all duties, imposts, and excises shall be 
uniform througliout the United States.' 'No 
capitation or otlier direct tax shall be laid, 
unless in proportion to the census or enumer- 
ation hereinl)efore dii-ected to be taken.' 'No 
tax or duty shall be laid on articles exported 
from any state.' 

"These clauses contain the entire grant of 
the taxing i)ower by the organic law, with 
the limitations which that instrument im- 
poses. 

"The national government, though supreme 
within its own spliei'e, is one of limited juris- 
diction and specitic functions. It has no fac- 
ulties but such as the constitution has given 
it, either expressly or incidentally by neces- 
sary intendment. Whenever any act done 
under its authority is challenged, the proper 
sanction must be found in its charter, or the 
act is ultra vires and void. This test must 
be applied in the examination of the question 
before us. If the tax to which it refers is a 
'direct tax.' it is clear that it has not been 
laid in conformity to the re<iuirements of 
the constitution. It is therefore necessary 
to ascertain to whicli of the categoi'ies named 
in the eighth section of the tii-st article it be- 
longs. 

"What are direct taxes wa'S elaiiorately ar- 
gued and considered by this court in Hylton 
V. U. S.. decided in the year 179(5. One of 
the members of tlie court (.Justice Wilson) 
had been a distinguished member of the con- 
vention which framed the constitution. It 
was unanimously held by the four justices 
who heaid the argument that a tax upon 
carriages kept by the owner for his own 
use was not a direct tax. Justice Chase said: 
*I am inclined to think— but of this 1 do not 
give a judicial opinion — that the direct taxes 
contemplated by the constitution are only 
two, to wit, a capitation or poll tax simply, 
without regard to property, profession, or 
any other circumstances, and a tax on land.' 
Patei-son. .!., followed in the same line of re- 
marks. He said: 'I never entertained a 
doubt that the principal (I will not say the 
only) object the framers of the constitution 
contemplated as falling within the rule of 



apportionment was a capitation tax or a tax 
on land. * * * The constitution dec'ares 
that a capitation tax is a direct tax, and both 
in theoi-y and practice a tax on land is 
deemed to be a direct tax. In this way the 
terms "direct taxes" "capitation and other 
direct tax" are satisfied.' 

"The views expressed in this case are 
adopted by Chancelloi- Kent and .lustice Sto- 
ry in their examination of the subject. 'Du- 
ties' are dettned by Tondin to be things due 
and recoverable by law. The term, in its 
widest signitication, is hardly less compre- 
hensive tlian 'taxes.' It is applied, in its most 
restricted meaning, to customs; and in that 
sense is nearly tlie synonym of 'imposts.' 

" 'Impost' is a duty on imported goods and 
merchandise. In a larger sense, it is any 
tax or imposition. Cowell says it is distin- 
guished from 'custom,' 'because custom is 
rather tlie profit which the prince makes on 
goods shipped out.' Mr. Madison considered 
the terms 'duties' and 'imposts' in these 
clauses as synonymous. Judge Tucker 
thought 'they were probably intended to com- 
prehend eveiT species of tax or contribution 
not included under the ordinary terms "tax- 
es" and "excises."' ' 

" 'p]xci.se' is defined to be an inland impo- 
sition, sometimes upon the consumption of 
the commodity, and sometimes ui)ou tlie re- 
tail sale; .sometimes upon the manufacturer, 
and sometimes upon the vendor. 

"The taxing power is given in the most 
comprehensive terms. The only limitations 
imposed are that direct taxes, including the 
capitation tax, shall be apportioned; that du- 
ties, imposts, and excises shall be uniform; 
and that no duties shall be imposed upon ar- 
ticles e.xported from any state. With these 
exceptions, the exercise of the power is, in 
all respects, uufettered. 

"If a tax upon carriages, kept for his own 
use b.v the owner, is not a direct tax. we can 
see no ground upon whicli a tax upon the 
business of an insurance company can lie 
held to belong to that class of revenue cliar- 
ges. 

"It has been held that congress may require 
direct taxes to be laid and collected in the 
territories as well as in the states. 

"The consequences which would follow the 
apportionment of the tax in question among 
the states and territories of the Union in the 
manner prescribed by the constitution must 
not be overlooked. They are very obvious. 
Where such corporations are numerous and 
rich, it might be light; where none exist, it 
could not be collected; where they are few 
and poor, it would fall upon them with such 
weight as to involve annihilation. It cannot 
be supposed that the framers of the constitu- 
tion intended that any tax should be appor- 
tioned, the collection of wliich on that prin- 
ciple would be attended witli such results. 
The consequences are fatal to the proposition. 

"To tlie questiou under consideration it 



LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 



1615 



must be answered that the tax to which it 
relates is not a direct tax, but a duty or ex- 
cise; that it was obligatory on the plaintitt" 
to pay it. 

"The other questions certified up are deem- 
ed to be sufficiently answered by the answers 
given to the first and sixth questions." 

This opinion, it seems to me, closes the 
door to discussion in regard to the meaning 
of the word ''direct" in the constitution, and 
renders unnecessary a resort to the conflicting 
opinions of the framers, or to the theories of 
the economists. It adopts that construction 
of the word which confines it to capitation 
taxes and a ta,x on land, and necessarily re- 
jects the contention that that word was to be 
consti'ued in accordance with the economic 
theory of shifting a tax from the shouldei"s of 
the person upon whom it was immediately 
levied to those of some other pereon. This 
decision moreover, is of great importance, be- 
cause it is an authoritative reaffinnance of 
the Hylton Case, and an approval of the sug- 
gestions there made by the justices, and con- 
stitutes another sanction given by this court 
to the interpretation of the constitution adopt- 
ed by the legislative, executive, and judicial 
departments of the government, and there- 
after continuously acted upon. 

Not long thei'eafter, in Bank v. Fenno, 8 
Wall. 533, the question of the application of 
the word "direct" was again submitted to 
this court. The issue there was whether a 
tax on the circulation of state banks was "di- 
rect," within the meaning of the constitution. 
It was ably argued by the most distinguished 
counsel, Reverdy Johnson and Caleb Gushing 
representing the bank, and Attorney General 
Hoar, the United States. The brief of Mr. 
Gushing again presented nearly every point 
now urged upon our consideration. It cited 
copiously from the opinions of Adam Smith 
and others. The constitutionality of the tax 
was maintained by the government on the 
ground that the meaning of the word "direct" 
in the constitution, as interpreted by the 
Hylton Case, as enforced by the continuous 
legislative construction, and as sanctioned by 
the consensus of opinion already referred to, 
was finally settled. Those who assailed the 
tax there urged, as is done here, that the 
Hylton Case was not conclusive, because the 
only question decided was the particular mat- 
ter at issue, and insisted that the suggestions 
of the judges were mere dicta, and not to be 
followed. They said that Hylton v. U. S. ad- 
judged one point alone, which was that a 
tax on a carriage was not a direct tax, "^<\ 
that from the utterances of the judges in the 
case it was obvious that the general question 
of what was a direct tax was but crudely 
considered. Thus the argument there pre- 
sented to this court the very view of the 
Hylton Case, which has been reiterated in 
the argument here, and which is sustained 
now. What did this court say then, speak- 
ing through Chief Justice Chase, as to these 



arguments? I take very fully from its 
opinion: 

"Much diversity of opinion has always pre- 
vailed upon the question, what are direct 
taxes? Attempts to answer it by reference 
to the definitions of political economists have 
been frequently made, but without satisfac- 
tory results. The enumeration of the differ- 
ent kinds of taxes which congress was au- 
thorized to impose was probably made with 
veiy little reference to their speculations. 
The great work of Adam Smith, the first 
comprehensive treatise on political economy 
in the English language, had then been re- 
cently published; but in this work, though 
there are passages which refer to the charac- 
teristic difference between direct and indirect 
taxation, there is nothing which affords any 
valuable light on the use of the words 'direct 
taxes,' in the constitution. 

"We ai-e obliged, therefore, to resort to his- 
torical evidence, and to seek the meaning of 
the words in the use and in the opinion of 
those whose relations to the government, and 
means of knowledge, wairanted them in 
speaking with authority. 

"And. considered in this light, the meaning 
and application of the rule, as to direct taxes, 
appears to us quite clear. 

"It is, as we think, distinctly shown in every 
act of congress on the subject. 

"In each of these acts a gross sum was 
laid upon the United States, and the total 
amount was apportioned to the several states 
according to their respective numbei-s of in- 
habitants, as ascertained by the last preced- 
ing census. Having been apportioned, pro- 
vision was made for the imposition of the 
tax upon the subjects specified in the act, fix- 
ing its total sum. 

"In 1798, when the first direct tax was im- 
posed, the total amount was fixed at two 
millions of dollars; in 1813, the amount of 
the second direct tax was fixed at three 
millions; in ISl.'S, the amount of the third at 
six millions, an^ it made an annual tax; 
in 181G, the provision making the tax annual 
was repealed by the repeal of the first sec- 
tion of the act of 1815, and the total amount 
was fixed for that year at three millions of 
dollars. No other direct tax was imposed un- 
til 1861, when a direct tax of twenty millions 
of dollars was laid, and made annual; but 
the provision making it annual was sus- 
pended, and no tax, except that first laid, 
was ever apportioned. In each instance the 
total sum was apportioned among the states 
by the constitutional rule, and was assessed 
at -n-escribed rates on the subjects of the tax. 
The subjects, in 1798, 1813, 1815, 1816, were 
lands, improvements, dwelling houses, and 
slaves; and in 1861, lands, improvements, 
and dwelling houses only. Under the act of 
1798, slaves were assessed at fifty cents on 
each; under the other acts, according to 
-aluation by assessors. 

"This review shows that personal property, 



164 



THE POWEIl OF TAXATION". 



contracts, occupations, and the like, have 
never been regarded by congress as proper 
subjects of direct tax. It has been supposed 
that slaves must be considered as an excep- 
tion to this observation, but the exception is 
rather apparent than real. As persons, slaves 
M'ere proper subjects of a capitation tax, 
which is described in the constitution as a 
direct tax; as property, they were, by the 
laws of some, if not most, of the states, class- 
ed as real property, descendible to heirs. 
Under the first view, they would be subject 
to the tax of 1798, as a capitation tax; imder 
the latter, they would be subject to the taxa- 
,tion of the other years, as realty. That the 
latter view was that taken by the framers of 
the acts, after 1798, becomes highly probable, 
when it is considered that, in the states where 
slaves were held, much of the value which 
would otherwise have attached to land passed 
into the slaves. If. indeed, the laud only had 
been valued without the slaves, the land 
would have been subject to much heavier 
proportional imposition in those states than 
in states where there were no slaves; for the 
proportion of tax imposed on each state was 
determined by population, without reference 
to the subjects on which it was to be assessed. 

"The fact, then, that slaves were valued, 
xmder the acts refeiTed to, far from showing, 
as some have supposed, that congress re- 
garded personal property as a pi-oper object 
of direct taxation, under the constitution, 
shows only that congress, after 1798, regard- 
ed slaves, for the purposes of taxation, as 
realty. 

"It may be rightly affirmed, therefore, that, 
in the practical construction of the constitu- 
tion by congress, direct taxes have been lim- 
ited to taxes on land and appurtenances, and 
taxes on polls, or capitation taxes. 

"And this construction is entitled to great 
consideration,especially intlie absence of any- 
thing adverse to it in the discussions of the 
convention which framed, and of the conven- 
tions which ratified, the constitution. * « * 

"This view received the sanction of this 
court two years before the enactment of the 
first law imposing direct taxes eo nomine." 

The court then reviews the Hylton Case, 
repudiates the attack made upon it, reaffirms 
the construction placed on it by the legisla- 
tive, executive, and judicial departments, and 
expressly adheres to the ruling in the insur- 
ance Company Case, to whicii I have referred. 
Summing up, it said: 

"It follows necessarily that the power to 
tax without apportionment extends to all 
other objects. Taxes on other objects are in- 
cluded under the heads of taxes not direct, 
duties, imposts, and excises, and must be laid 
and collected by the rule of uniformity. The 
tax under consideration is a tax on bank cir- 
culation, and may very well be classed under 
the head of duties. Certainly it is not, in 
the sense of the constitution, a direct tax. It 
may be said to come within the same cate- 



gory of taxation as the tax on incomes of in- 
surance companies, which this court, at the 
last term, in the case of Insurance Co. v. 
Soule, held not to be a direct tax." 

This case was, so far as the question of di- 
rect taxation is concerned, decided by an un- 
divided court; for, although Mr. Justice Nel- 
son dissented from the opinion, it was not on 
the gi'ound that the tax was a direct tax, but 
on another question. 

Some years after this decision the matter 
again came here for adjudication, in the case 
of Scholey v. Rew. 23 Wall. 331. The issue 
there involved was the validity of a tax 
placed by a United States statute on the right 
to take real estate by inheritance. The col- 
lection of the tax was resisted on the ground 
that it was direct. The brief expressly urged 
this contention, and said the tax in question 
was a tax on land, if ever there was one. It 
discussed the Hylton Case, referred to the 
language used by the various judges, and 
sought to place upon it the construction which 
we are now urged to give it, and which has 
been so often rejected by this court. 

This court again by its unanimous judg- 
ment answered all these contentions. I quote 
its language: 

"Support to the first objection is attempted 
to be drawn from that clause of the constitu- 
tion which provides that direct taxes shall be 
apportioned among the several states which 
may be included within the Union, according 
to their respective numbers, and also from the 
clause which provides that no capitation or 
other direct tax shall be laid, unless in propor- 
tion to the census or amended enumeration; 
but it is clear that the tax or duty levied by 
the act under consideration is not a direct tax, 
within the meaning of either of those provi- 
s';ons. Instead of that, it is plainly an excise 
tax or duty, autliorized by section 8 of article 
1, which vests the power in congress to lay 
and collect taxes, duties, imposts, and excises, 
to pay the debts, and provide for the common 
defense and general welfare. * * * 

"Indirect taxes, such as duties of impost 
and excises, and every other description of 
the same, must be uniform; and direct taxes 
must be laid in proportion to the census or 
enumeration, as remodeled in the fourteenth 
amendment. Taxes on lands, houses, and 
other permanent real estate have always been 
deemed to be direct taxes, and capitation 
taxed, by the express words of the constitu- 
tion, are within the same category; but it 
never has been decided that any other legal 
exactions for the support of the federal gov- 
ernment fall within the condition that, unless 
laid in proportion to numbers, that the as- 
sessment is invalid. 

"Whether direct taxes, in the sense of the 
constitution, comprehend any other tax than 
a capitation tax and a tax on land, is a ques- 
tion not absolutely decided, nor is it neces- 
sary to determine it in the present case, as it 
is expressly decided that the term does not 



LIMITATIONS IMPOSED BY FEDEIIAL CONSTITUTION. 



165 



include the tax on income, whicli cannot be 
distinguished in principle from a succession 
tax, such as the one involved in the present 
controversy." 

What language could more clearly and for- 
cibly reaffirm the previous rulings of the 
court upon this subject? What stronger in- 
dorsement could be given to the construction 
of the constitution which had been given in 
the Hylton Case, and which had been adopt- 
ed and adhered to by all branches of the 
government almost from the hour of its estab- 
lishment? It is worthy of note that the court 
here treated the decision in the Hylton Case 
as conveying the view that the only direct 
taxes were "taxes on land and appurte- 
nance." In so doing it necessarily again 
adopted the suggestion of the justices there 
made, thus making them the adjudged con- 
clusions of this court. It is too late now to 
destroy the force of the opinions in that case 
by qualifying them as mere dicta, when they 
have again and again been expressly ap- 
proved by this court. 

If there were left a doubt as to what this 
established construction is, it seems to be en- 
tirely removed by tlie case of Springer v. U. 
S., 102 U. S. 586. Springer was assessed for 
an income tax on his professional earnings 
and on the interest on United States bonds. 
He declined to pay. His real estate was sold 
in consequence. The suit involved the va- 
lidity of the tax, as a basis for the sale. 
Again every question now presented was 
urged upon this court. The brief of the plain- 
tiff in error. Springer, made the most copious 
references to the economic writers, conti- 
nental and English. It cited the opinions of 
the framers of the constitution. It contained 
extracts from the journals of the convention, 
and marshaled the authorities in extensive 
and impressive array. It reiterated the argu- 
ment against the validity of an income tax 
which included rentals. It is also asserted 
that the Hylton Case was not authority, be- 
cause the expressions of the judges, in re- 
gard to anything except the caiTiage tax, 
were mere dicta. 

The court adhered to the ruling announced 
in the previous cases, and held that the tax 
was not direct, within the meaning of the 
constitution. It re-examined and answered 
everything advanced here, and said, in sum- 
ming up the case: 

"Our conclusions are that direct taxes, with- 
in the meaning of the constitution, are only 
capitation taxes, as exjjressed in that instru- 
'^■■."nt, and taxes on real estate; and that the 
tax of which the plaintiff in error complained 
is within the category of an excise or duty." 

The facts, then, are briefly these: At the 
very birth of the government a contention 
arose as to the meaning of the word "direct." 
That controversy was determined by the leg- 
islative and executive departments of the gov- 
ernment. Their action came to this court for 
review, and it was approved. Evei-y judge 
of this court who expressed an opinion made 



use of language which clearly showed that 
he thought the word "direct," in the constitu- 
tion, applied only to capitation taxes and tax- 
es directly on land. Thereafter the construc- 
tion thus given was accepted everywhere as 
definitive. The matter came again and again 
to this coui-t, and in every case the original 
ruling was adhered to. The suggestions made 
in the Hylton Case were adopted here, and in 
the last case here decided, reviewing all the 
others, this court said that direct taxes, with- 
in the meaning of the constitution, were only 
taxes on land, and capitation taxes. And 
now, after a hundred years, after long-con- 
tinued action by other departments of the 
government, and after repeated adjudications 
of this court, this inteiTpretation is overthrown, 
and tlie congress is declared not to have a 
power of taxation which may at some time, 
as it has in the past, prove necessary to the 
very existence of the government. By what 
process of reasoning is this to be done? By 
resort to theories, in order to construe the 
word "direct" in its economic sense, instead 
of in accordance with its meaning in the con- 
stitution, when the very result of the history 
which I have thus briefly recounted is to show 
that the economic construction of the word 
was repudiated by the framers themselves, 
and has been time and time again rejected by 
this court; by a resort to the language of the 
framers and a review of their opinions, al- 
though the facts plainly show that they them- 
selves settled the question which the court 
now virtually unsettles. In view of all that 
has taken place, and of the many decisions 
of this court, the matter at issue here ought 
to be regarded as closed forever. 

The injustice and harm which must always 
result from overthrowing a long and settled 
practice sanctioned by the decisions of this 
court could not be better illustrated than by 
the example which this case affords. Under 
the income-tax laws which prevailed in the 
past for many years, and which covered every 
conceivable source of income,— rentals from 
real estate,— and everything else, vast sums 
were collected from the people of the United 
States. The decision here rendered announ- 
ces that those sums were wrongfully taken, 
and thereby, it seems to me, creates a claim, in 
equity and good conscience, against the gov- 
ernment for an enormous amount of money. 
Thus, from the change of view by this court. 
It happens that an act of congress, passed for 
the purpose of raising revenue, in strict con- 
formity with the practice of the government 
from the earliest time, and in accordance 
witli the oft-repeated decisions of this court, 
furnishes the occasion for creating a claim 
against the government for hundreds of mil- 
lions of dollars. I say, creating a claim, be- 
cause, if the government be in good conscience 
bound to refund that which has been taken 
from the citizen in violation of the constitu- 
tion, although the technical right may have 
disappeared by lapse of time, or because the 
decisions of this court have misled the citizeu 



166 



THE POWER OF TAXATIOX. 



to his grievous injury, the equity endures, and 
will present itself to the couscience of the 
government. This consequence shows how 
necessary it is that the court should not over- 
throw its past decisions. A distinguished 
writer aptly points out the wrong which 
must result to society from a shifting judi- 
cial interpretation. He says: 

"If rules and maxims of law were to ebb 
and flow with the taste of the judge, or to 
assume that shape which, in his fancy, best 
becomes the times; if the decisions of one 
case were not to be ruled by or depend at all 
upon former determinations in other cases of 
a like nature,—! should be glad to Ivnow 
what person AA'ould venture to purchase an es- 
tate witliout fir.st having the Judgment of a 
court of justice respecting the identical title 
which he means to purchase. No rehance 
could be had ui>on precedents. Former leso- 
lutions upon titles of the same kind could 
afford him no assurance at all. Nay, eveu a 
decision of a court of justice upon the very 
identical title would be nothing more than a 
precarious, temporary security. The principle 
upon which it was founded might, in the 
course of a few years, become antiquated. 
The same title might be again drawn into dis- 
pute. The taste and fashion of the times 
might be improved, and on that ground a 
future judge might hold himself at liberty, if 
not consider it his duty, to pay as little re- 
gard to the maxims and decisions of his pred- 
ecessor as that predcH-essor did to the maxims 
and decisions of those who went before him." 
Fearne. Rem. (Ivondon Ed. 1801) p. 2CA. 

The disastrous consequences to flow from 
disregarding settled decisions, thus cogently 
described, must evidently become greatly 
magnified in a caise like the present, when the 
opinion of the court affects fundamental prin- 
ciples of the governmont by denying an es- 
sential power of taxation long conceded to 
exist, and often exerted by congress. If it 
was necessary that tlie previous decisions of 
this court should be repudiated, the power to 
amend the constitution existed, and should 
have been availed of. Since the Hylton Case 
was decided, the constitution lias been repeat- 
edly amended. The construction which con- 
fined the word "direct" to capitation and 
land taxes was not changed by these amend- 
ments, and it should not now be reversed by 
what seems to me to be a judicial amendment 
of the constitution. 

The finding of the court in this case that 
the inclusion of rentals from real estate in an 
income tax makes it direct, \o that extent, is, 
in my judgment, conclusively denied by the 
authorities to which I have referred, and 
which establish the validity of an income tax 
In itself. Hence. I submit, the decision nec- 
essarily reverses the settled rule which it 
seemingly adopts in part. Can there be se- 
rious doubt that the question of the validity 
of an income tax, in which the rentals of real 
estate are included, is covered by the deci- 
sions which say that an income tax is gener- 



ically indirect, and that, therefore, it is valid 
without apportionment? I mean, of course, 
could there be any such doubt, were it not for 
the present opinion of the court? Before un- 
dertaking to answer this question 1 deem it 
necessary to consider some arguments ad- 
vanced or suggestions made. 

(1) The opinions of Turgot and Smith and 
other economists are cited, and it is said their 
views were known to the framers of the con- 
stitution, and we are then refeiTcd to the 
opinions of the framers themselves. The ob- 
ject of the collocation of these two sources of 
authority is to show that there was a concur- 
rence between them as to the meaning of the 
word "direct." But, in order to reach this 
conclusion, we are compelled to overlook the 
fact that this court has always held, as ap- 
pears from the preceding cases, that the opin- 
ions of the economists threw little or no light 
on the inteipretation of the word "direct," as 
found in the constitution. And the whole 
eft'ect of the decisions of this court is to es- 
tablish the proposition that the word has a 
different significance in the constitution from 
that which Smith and Turgot have given to 
it when used in a general economic sense. 
Indeed, it seems to me that the conclusion de- 
duced from this line of thought itself demon- 
strates its own unsoundness. What is that 
conclusion? That the framers well under- 
stood the meaning of "direct." 

Xow, it seems evident that the framers, 
who well understood the meaning of this 
word, have themselves declared in the most 
positive way that it shall not be here con- 
strued in the sense of Smith and Turgot. 
The congress which passed the carriage tax 
act was comi)osed largely of men who had 
participated in framing the constitution. 
That act was approved by Washington, who 
had presided over the deliberations of the 
convention. Certainly, Washington himself, 
and the majority of the framers, if they well 
undei'stood the sense in which the word "di- 
rect" was used,, would have declined to adopt 
and approve a taxing act which clearly vio- 
lated the provisions of the constitution, if the 
word "direct," as therein used, had the mean- 
ing wliich must be attached to it if read by 
the light of the theories of Turgot and Adam 
Smitli. As has already been noted, all the 
judges who expressed opinions in the Hyl- 
ton Case suggested that "direct." in the con- 
stitutional sense, referred only to taxes on 
land and capitation taxes. Could they have 
possibly made this suggestion if the word 
had been used as Smith and Turgot used it? 
It is immaterial whether the suggestions of 
the judges were dicta or not. They could 
not certainly have made this intimation, if 
they understood the meaning of the word 
"direct" as being that which it must have 
imported if construed according to the writ- 
ers mentioned. Take the language of Mr. 
Justice Paterson. "I never entertained a 
doubt that the principal, I will not say the 
only, objects that the framers of the consti- 



LIMITATIONS IMPOSED BY FEDERAL CONSTITUTIOX. 



167 



tutioD contemplated as fallinjj within the rule 
of apportionment were a capitation tax and a 
tax on land." He had borne a conspicuous 
part in the convention. Can we say that he 
undei-stood the meaning of the framers, and 
,yet. after the lapse of a himdred years, fi"it- 
ter away that language, uttered by him from 
this bench in the tlrst great case in which 
this court was called upon to inteipret the 
meaning of the word "direct"? It cannot be 
said that his language was used carelessly, 
or without a knowledge of its great import. 
The debate upon the passage of the carriage 
tax act had manifested divergence of opinion 
as to the meaning of the word "direct." 
The magnitude of the issue is shown by all 
contemporaneous authoi-ity to have been 
deeply felt, and its far-reaching consequence 
V4'as appreciated. Those controversies came 
here for settlement, and were then determin- 
ed with a full knowledge of the importance 
Df the issues. They should not be now re- 
opened. 

The argument, then, it seems to me, re- 
duces itself to this: That the framers well 
knew the meaning of the word "direct"; 
that, so well understanding it, they practical- 
ly interpreted it in such a way as to plainly 
indicate that it had a sense contrary to that 
now given to it, in the view adopted by the 
court. Although they thus comprehended 
the meaning of the word and intei'preted it 
at an early day, their inteipretatiou is now 
to be overthrown by resorting to the econo- 
mists whose construction was repudiated by 
them. It is thus demonstrable that the con- 
clusion deduced from the premise that the 
framers well understood the meaning of the 
■word "direct" involves a fallacy; in other 
words, that it draws a faulty conclusion, 
even if the predicate upon which the conclu- 
sion is rested be fully admitted. But I do not 
admit the premise. The views of the fram- 
ers, cited in the argument, conclusively show 
that they did not well understand, but were 
In great doubt as to, the meaning of the 
word "direct." The use of the word was 
the result of a compromise. It was accepted 
as the solution of a difficulty which threaten- 
ed to frustrate the hopes of those who look- 
ed upon the formation of a new government 
as absolutely necessary to escape the condi- 
tion of weakness which the articles of con- 
federation had shown. Those who accepted 
the compromise viewed the word in different 
lights, and expected different results to flow 
from its adoption. This was the natural re- 
sult of the struggle which was terminated 
by the adoption of the provision as to repre- 
sentation and direct taxes. That warfare of 
opinion had been engendered by the exist- 
ence of slavery in some of the states, and 
was the consequence of the conflict of inter- 
est thus brought about. In reac-hing a set- 
tlement, the minds of those who acted on it 
were naturally concerned in the main with 
the cause of the contention, and not with 
the other things which had been previously 



settled by the convention. Thus, while there 
was, in all probability, clearness of vision as 
to the meaning of the word "direct," in rela- 
tion to its bearing on slave pi'operty, there 
was inattention in regard to other things, and 
there were therefore diverse opinions as to 
its proper signification. That such was the 
case in regard to many other clauses of the 
constitution has been showm to be the ease 
by t.- !se great controversies of the past, 
which have been peacefully settled by the 
adjudications of this court. While this dif- 
ference undoubtedly existed as to the effect 
to be given the word "direct," the consensus 
of the majoritj^ of the framers as to its 
meaning was shown by the passage of the 
carriage tax act. That consensus found ade- 
quate expression in the opinions of the jus- 
tices in the Hylton Case, and in the decree 
of this court there rendered. The passage 
of that act, those opinions, and that decree, 
settled the proposition that the word applied 
only to capitation taxes and taxes on land. 

Nor does the fact that there was differ- 
ence in the minds of the fi-amers as to the 
meaning of the word "direct" weaken the 
binding force of the interpretation placed up- 
on that word from the beginning; for, if 
such difference existed, it is certainly sound 
to hold that a contemporaneous solution of a 
doubtful question, which has been often con- 
firmed by this court, should not now be re-' 
versed. The framers of the constitution, the 
members of the earliest congress, the illus- 
ti'ious man first called to the office of chief 
executive, the jurists who first sat in this 
court, two of whom had borne a great part 
in the labors of the convention, all of whom 
dealt with this doubtful question, surely oc- 
cupied a higher vantage ground for its cor- 
rect solution than do those of our day. Here, 
then, is the dilemma: If the framers under- 
stood the meaning of the word "direct" in 
the constitution, the pi-actical effect which 
they gave to it should remain undisturbed; 
if they were in doubt as to the meaning, the 
interpretation long since authoritatively af- 
fixed to it should be upheld. 

(2) Nor do I think any light is thrown upon 
the question of whether the tax here undsr 
consideration is direct or indirect by refer- 
ring to the principle of "taxation without rep- 
resentation," and the great struggle of our 
forefathers for its enforcement. It cannot 
be said that the congress which passed this 
act was not the representative body fixed by 
the constitution. Nor can it be contended 
that the struggle for the enforcement of the 
principle involved the contention that repre- 
sentation should be in exact proportion to the 
wealth taxed. If the argument be used in 
order to draw the inference that because, in 
this instance, the indirect tax imposed will 
operate differently through various sections 
of the country, therefore that tax should be 
treated as direct, it seems to me it Is un- 
sound. The right to tax, and not the effects 
which may follow from Its lawful exercise. 



168 



THE POWER OF TAXATIOX. 



is the only judicial question which this court 
is called upon to consider. If an indirect 
tax, which the constitution has not subject- 
ed to the rule of apiwrtionment, is to be held 
to be a direct tax, because it will bear upon 
aggregations of property in different sections 
of the country according to the extent of 
such aggregations, then the power is denied 
to congress to do that which the constitu- 
tion authorizes because the exercise of a law- 
ful power is supposed to work out a result 
which, in the opinion of the court, was not 
contemplated by the fathers. If this be 
sound, then every question which has been 
determined in our past history is now still 
open for judicial reconstruction. The just- 
ness of tariff legislation has turned upon the 
assertion on the one hand, denied on the oth- 
er, that it operated une(iually on the Inhab 
itants of different sections of the country. 
Those Avho opposed such legislation have al- 
ways contended that its necessary effect was 
not only to put the whole burden upon one 
section, but also to directly eurich certain of 
our citizens at the expense of the rest, and 
thus build up great fortunes, to the benefit 
of the few and the detriment of the many. 
Whether this economic contention be true or 
untrue is not the question. Of course, I in- 
timate no view on the subject. Will it be 
said that if, to-morrow, the personnel of this 
court should be changed, it could deny the 
power to enact tariff legislation which has 
been admitted to exist in congress from the 
beginning, upon the ground that such legisla- 
tion beneficially affects one section or set of 
people to the detriment of others, within the 
spirit of the constitution, and therefore con- 
stitutes a direct tax? 

(3) Nor, in my judgment, does any force re- 
sult from the argument that the framers ex- 
pected direct taxes to be rarely resorted to, 
and, as the present tax was imposed without 
public necessity, it should be declared void. 

It seems to me that tiiis statement begs the 
whole question, for it assumes that the act 
now before us levies a direct tax, whereas 
the question whether the tax is direct or not 
is the very issue involved in this case. If 
congress now deems it advisable to resort 
to certain forms of indirect taxation which 
have been frequently, though not continu- 
ously, availed of in the past, I cannot see 
that its so doing affords any reason for con- 
verting an indirect into a direct tax in or- 
der to nullify the legislative will. The pol- 
icy of any particular method of taxation, or 
the presence of an exigency which requires 
its adoption, is a purely legislative question. 
It seems to me that it violates the elementa- 
ry distinction between the two departments 
of the government to allow an opinion of 
this court upon the necessity or expediency 
of a tax to affect or control our determina- 
tion of the existence of the power to im- 
pose it. 

But I pass from these considerations to ap- 
proach the question whether the Inclusion of 



rentals fi-om real estate in an income tax 
renders such a tax to that extent "direct" 
under the constitution, bei^-ause it constitutes 
the imix)sition of a direct tax on the land 
itself. 

Does the inclusion of the rentals fi*om real 
estate in the sum going to make up the ag- 
gregate income from which (in order to ar- 
rive at taxable income) is to be deducted 
insurance, repairs, losses in business, and 
$4,000 exemption, make the tax on income 
so ascertained a direct tax on such real es- 
tate? 

In answering this question, we must nec- 
essarily accept the interpretation of the 
word "direct" authoritatively given by the 
history of the government and the decisions 
of this court just cited. To adopt that in- 
tei-pretation for the general purposes of an 
income tax, and then repudiate it because of 
one of the elements of which it is composed, 
would violate every elementary nile of con- 
struction. So, also, to seemingly accept that 
interpretation, and then resort to the framere 
and the economists in order to limit its ap- 
plication and give it a different significance, 
is equivalent to its destruction, and amounts 
to repudiating it without directly doing so. 
Under the settletl interpretation of the word, 
we ascertain whether a tax be "direct" or 
not by considering whether it is a tax on 
land or a capitation tax. And the tax on 
land, to be within the provision for appor- 
tionment, must be direct. Therefore we have 
two things to take into account: Is it a tax 
on land, and is it direct thereon, or so im- 
mediately on the land as to be equivalent to 
a direct levy upon it? To say that any bur- 
den on land, even though indirect, must be 
apportioned, is not only to incorporate a 
new provision in the constitution, but is also 
to obliterate all the decisions to which I 
have referred, by constiniing them as hold- 
ing that, although the constitution forbids 
only a direct tax on land without apportion- 
ment, it must be so intei-preted as to bring 
an indirect tax on land within its inhibition. 

It is said that a tax on the rentals is a tax 
on the land, as if the act here under con- 
sideration imposed an immediate tax on the 
rentals. This statement, I submit, is a mis- 
conception of the issue. The pKjint involved 
is whether a tax on net income, when such 
income is made up by aggregating all sources 
of revepue and deducting repairs, insurance, 
losses in business, exemptions, etc., becomes, 
to the extent to which real-estate revenues 
may have entered into the gross income, a 
direct tax on the land itself. In other words, 
does that which reaches an income, and 
thereby reaches rentals indirectly, and reach- 
es the land by a double indirection, amount 
to a direct levy on the land itself? It seems 
to me the question, when thus accurately 
stated, furnishes Its own negative response. 
Indeed, I do not see how the issue can be 
stated precisely and logically witliout mak- 
ing It apparent on its face that the iuclu- 



LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION". 



169' 



sion of rental from real property in income 
is nothing more ttian an indirect tax upon 
the land. 

It must be borne in mind that we are 
dealing not with the want of power in con- 
gress to assess real estate at all. On the 
contrary, as I have shown at the outset, con- 
gress has plenary power to reach real estate, 
both directly and indirectly. If it taxes real 
estate directly, the constitution commands 
that such direct imposition shall be appor- 
tioned. But because an excise or other indi- 
rect tax, imposed without apportionment, has 
an indirect effect upon real estate, no viola- 
tion of the constitution is committed, be- 
cause the constitution has left congress un- 
trammeled by any rule of apportionment as 
to indirect taxes, — imposts, duties, and ex- 
cises. The opinions in the Hylton Case, so 
often approved and reiterated, the unani- 
mous views of the text writers, all show that 
a tax on land, to be direct, must be an as- 
sessment of the land itself, either by quan- 
tity or valuation. Here there is no such as- 
sessment. It is well also to bear in mind, 
in considering whether the tax is direct on 
the laud, the fact that if land yields no rental 
it contributes nothing to the income. If it 
is vacant, the law does not force the owner- 
to add the rental value to his taxable income. 
And so it is if he occupies it himself. 

The citation made by counsel from Coke on 
Littleton, upon which so much sitress is laid, 
seems to me to have no relevancy. The fact 
that where one delivers or agrees to give 
or ti-ansfer land, with all the fruits and rev- 
enues, it will be presumed to be a convey- 
ance of the land, in no way supports the 
proposition that an indirect tax on the rental 
of land is a direct burden on the land itself. 

Nor can I see the application of Brown v. 
Maryland; Weston v. City Council; Dobbins 
V. Commissioners; Almy v. Calif ornia ; Cook v. 
Pennsylvania; Railroad Co. v. Jackson; 
Philadelphia & S. S. S. Co. v. Pennsylvania; 
Leloup V. Mobile; Telegraph Co. v. Adams. All 
these cases involved the question whether, 
under the constitution, if no power existed 
to tax ait all, either directly or indirectly, an 
indirect tax would be unconstitutional. These 
cases would be apposite to this if congress 
had no power to tax real estate. Were such 
the case, it might be that the imposition of 
an excise by congress which reached real 
estate indirectly would necessarily violate 
the constitution, because, as it had no power 
in the premises, every attempt to tax, direct- 
ly or indirectly, would be null. ELere, on the 
contrary, it is not denied that the power to 
tax exists in congress, but the question is, 
is the tax director indirect, in the consti- 
tutional sense? 

But it is unnecessary to follow the argu- 
ment further; for, if I understand the opin- 
ions of this court already referred to, they 
absolutely settle the proposition that an in- 
clusion of the rentals of real estate in an in- 
come tax does not violate the constitution. 



At the risk of repetition, I propose to go over 
the cases again for the purpose of demon- 
strating this. In doing so, let it be under- 
stood at the outset that I do not question 
the authority of Cohens v. Virginia or Car- 
roll V. Carroll's Lessee or any other of the 
cases referred to in argument of counsel. 
These great opinions hold that an adjudica- 
tion need not be extended beyond the prin- 
ciples which it decides. While conceding 
this, it is submitted that, if decided cases do 
directly, affirmatively, and necessarily, in 
principle, adjudicate the very question here 
involved, then, under the very text of the 
opinions refen-ed to by the court, they should 
conclude this question. In the first case, that 
of Hylton, is there any possibility, by the 
subtlest ingenuity, to reconcile the decision 
here announced with what was there estab- 
lished? 

In the second case (Insurance Co. v. Soule) 
the levy was upon the company, its pre- 
miums, its dividends, and net gains from all 
sources. The case was certified to this court, 
and the statement made by the judges in ex- 
planation of the question which they pro- 
pounded says: 

"The amount of said premiums, dividends, 
and net gains were truly stated in said lists 
or returns." Original Record, p. 27. 

It will be thus seen that the issue there 
presented was not whether an income tax on 
business gains was valid, but whether an in- 
come tax on gains from business and all 
other net gains was constitutional. Under this 
state of facts, the question put to the court 
was— 

"Whether the taxes paid by the plaintiff, 
and sought to be recovered back, in this ac- 
tion, are not direct taxes within the meaning 
of the constitution of the United States." 

This tax covered revenue of every possible 
nature, and it therefore appears self-evident 
that the court could not have upheld the 
statute without deciding that the income de- 
rived from realty, as well as that derived 
from every other source, might be taxed 
without apportionment. It is obvious that, 
if the court had considered that any pai-ticu- 
lar subject-matter which the statute reached 
was not constitutionally included, it would 
have been obliged, by evei-y rule of safe judi- 
cial conduct, to qualify its answer as to this 
particular subject. 

It is impossible for me to conceive that the 
court did not embrace in its ruling the con- 
stitutionality of an income tax which includ- 
ed rentals from real estate, since, without 
passing upon tliat question, it could not have 
decided the issue presented. And another 
reason why it is logically impossible that this 
question of the validity of the inclusion of 
the rental of real estate in an income tax 
could have been overlooked by the court is 
found in the fact, to which 1 have already 
adverted, that this was one of the pnncipal 
points urged upon its attention, and the ar- 
gument covered all the ground which has 



17U 



THE powEii OF taxat:ox. 



been occupied here,— indeed, tlie very citatinn 
from Coke upon Littleton, now urged as con- 
clusive, was there made also in the brief of 
counsel. And although the return of in- 
come, involved in that case, was made "in 
block," the very fact that the burden of the 
argument was that to include rentals from 
real estate, in income subject to taxation, 
made such tax pro tanto direct, seems to me 
to indicate that such rentals had entered into 
the return made by the corporation. 

Again, in the case of Scholey v. Kew, the 
tax in question was laid directly on the i-ight 
to take real estate by inheritance, — a right 
which the United States had uo power to 
control. The case could not have been decid- 
ed, in any point of view, without holding a 
lax upon that right was not direct, and that, 
therefore, it could be lex'ied without appor- 
tionment. It is manifest that the- court could 
not have overlooked the question whether 
this was a direct tax on the land or not, be- 
cause in the argument of counsel it was said, 
if there was any tax in the world that was 
a tax on real estate which was direct, that 
was the one. The court said it was not. and 
sustained the law. I repeat that the tax 
there was put directl.v upon the right to in- 
herit, which con.gress had uo power to regu- 
late or control. The case was therefore great- 
ly stronger than that here presented, for con- 
gress has a right to tax real estate directly 
with apixirtionment. That decision cannot 
be explained away by saying that the court 
overlooked the fact that congress had no 
power to tax the devolution of real estate, 
and treated it as a tax on such devolution. 
Will it be .said, of the distinguished men who 
then adorned this bench, that, although the 
argument was pressed upon them that this 
tax was levied directl.v on the real estate. 
the.v ignored the elementaiy principle that 
the control of the inlieritance of realty is a 
state and not a federal function V But. e\en 
if the case proceeded upon the theory that 
the tax was on the devolution of the real es- 
tate, and was therefore not direct, is it not 
absolutely decisive of this controversy? If 
to put a burden of taxation on the right to 
take real estate by inheritance reaches realty 
only by indirection, Ikjw can it be said that 
a tax on the income, the result of all sources 
of i-evenue. including rentals, after deduct- 
ing losses and expenses, which thus reaches 
the rentals indirectly, and the real estate in- 
directly through the rentals, is a dii'ect tax 
on the real estate itself/ 

So. it is manifest in the Springer Case that 
the same question was necessarily decided. 
It seems obvious that the court intended in 
that case to decide the whole question, in- 
cluding the right to tax rental from real es- 
tate without apportionment. It was elabo- 
rately and carefully argued there that as the 
law included the rentals of land in the in- 
come taxed, and such inclusion was unconsti- 
tutional, this, therefore, destroyed that part 
of the law which imposed the tax on the rev- 



enues of personal property. Will it be said, 
in view of the fact that in this verj* case four 
of the judges of this court think that the in- 
clusion of the rentals from real estate in an 
income tax renders the whole law invalid, 
that the question of the inclusion of the rent- 
als was of no moment there, because the re- 
turn there did not contain a mention of such 
rentals? Were the great judges who then 
composed this court so neglectful that they 
did not see the importance of a question 
which is now considered by some of its mem- 
bers so vital that the result in their opinion 
is to annul the whole law, more especially 
when that question was pressed upon the 
court in argument with all possible vigor and 
earnestness? But I think that the opinion 
in the Springer Case clearly shows that the 
court did consider this question of im- 
portance, that it did intend to pa.ss upon it, 
and that it deemed that It had decided all 
the questions affecting the validity of an in- 
come tax in passing iipon the main issue, 
which included the others as the greater in- 
cludes the less. 

I can discover no principle upon which 
these cases can be considered as any less 
conclusive of the right to include rentals of 
land in the concrete result, income, than they 
are as to the right to lev.v a general income 
tax. Certainly, the decisions which hold 
that an income tax as such is not direct, de- 
cide on principle that to include the rentals 
of real estate in an income tax does not make 
it direct. If embracing rentals in income 
makes a tax on income to that extent a '"di- 
rect" tax on the land, then the same word, 
in the same sentence of the constitution, has 
two wholly distinct constitutional meanings, 
and signities one thing when ap]>lied to an 
income tax generally, and a different thing 
when applied to the poi'tiou of such a tax 
made up in part of rentals. That is to say, 
the word means one thing when applied to 
the greater, and another when ai)plied to the 
lesser, tax. 

My inability to agree with the court in the 
conclusions which it has just expressed 
caiises me much regret. (Jreat as is my re- 
spect for any view by it announced, I can- 
not resi.st the conviction that its opinion and 
decree in this case virtually aniuils its pre- 
vious decisions in regard to the powers of 
congress on the subject of taxation, and is 
therefore fiaught with danger to the court, 
to each and every citizen, and to the repub- 
lic. The conservation and orderly develop- 
ment of our institutions rest on our accept- 
ance of the results of the past, and their use 
as lights to guide our stejis in the future. 
Teach the lesson that settle-d principles may 
be overthrown at any time, and confusion 
and turmoil must ultimately result. In the 
discharge of its function of interpreting the 
constitution this court exercises an august 
power. It sits removed from the contentious 
of political parties and the animosities of 
factions. It seems to me that the accoui- 



LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 



171 



plishmcnt of its lofty mission can only be se- 
cured by the stability of its teaeliings and 
the sanctity which surrounds them. If the 
permanency of its conclusions is to depend 
upon the personal opinions of those who, 
from time to time, may make up its mem- 
bership, it will inevitably become a theater 
of political strife, and its action will be with- 
out coherence or consistency. There is no 
xreat principle of our constitutional law, 
such as the nature and extent of the com- 
merce power, or the currency power, or oth- 
«r powers of the federal government, which 
has not been ultimately delined by the adju- 
dications of this court after long and earnest 
struggle. If we are to go back to the orig- 
inal sources of our political system, or are 
to appeal to the writings of the economists 
in order to unsettle all these great princi- 
ples, everything is lost, and nothing saved 
to the people. The riglits of every individ- 
ual are guai'antied by the safeguards wliich 
have been thrown around them by ovu- adju- 
dications. If these are to be assailed and 
overthrown, as is the settled law of income 
taxation by this opinion, as I understiind it, 
the rights of property, so far as the federal 
constitution is concerned, are of little worth. 
My sti'ong convictions forbid that I take part 
in a conclusion whic-h seems to me so full 
of peril to the country. I am unwilling to 
do so, without reference to the question of 
what my personal opinion upon the subject 
might be if the question were a new one, and 
was thus unaffected by the action of the 
framers, the histoiy of the government, and 
the long line of decisions by this court. The 
wisdom of our forefathers in adopting a writ- 
ten constitution has often been impeached up- 
on the theory that the interpretation of a 
Avritten instrument did not afford as complete 
protection to liberty as would be enjoyed un- 
der a constitution made up of the traditions 
of a free people. AVriting, it has been said, 
does not insure greater stability than tradi- 
tion does, while it destroys flexibility. The 



answer has always been that by the foresight 
of the fathers the construction of our written 
constitution was ultimately coniided to this 
body, which, from the nature of its judicial 
structure, could always be relied upon to act 
with perfect freedom from the influence of 
faction, and to preserve the benefits of con- 
sistent interpretation. The fundamental con- 
ception of a judicial body is that of one 
hedged about by precedents Avhich are bind- 
ing on the court without regard to the per- 
sonality of its members. Break down this 
belief in judicial continuity, and let it be felt 
that on great constitutional questions this 
court is to depart from the settled conclusions 
of its predecessors, and to determine them all 
according to the mere opinion of those who 
temporarily fill its bench, and our constituiiou 
will, in my judgment, be bereft of value, and 
become a most dangerous instrument to the 
rights and liberties of the people. 

In regard to the right to include in an in- 
come tax the interest upon the bonds of mu- 
nicipal corporations, I think the decisions of 
this court, holding that the federal govern- 
ment is without power to tax the agencies 
of the state government, embrace such bonds, 
and that this settled line of authority, is con- 
clusive upon my judgment here. It deter- 
mines the question that, where there is no 
power to tax for any purpose whatever, no 
direct or indirect tax can be imposed. The 
authorities cited in the opinion are decisive 
of tliis question. They are relevant to one 
case, and not to the other, because, in the one 
case, there is full power in the federal gov- 
ernment to tax, the only controversy being 
whether the tax imix)sed is direct or indirect; 
while in the other there is no power whatever 
in the federal government, and therefoi-e the 
levy, whether direct or indirect, is beyond the 
taxing power. 

Mr. .Tustice HARTjAX authorizes me to say 
that he concurs in tlie views herein ex- 
pressed. 



172 



THE POWER OF TAXATION 



LOAN ASSOCIATION v. TOPEKA.i 

(20 Wall. 655.) 

Supreme Court of the United States. Oct., 1874. 

Error to the circuit court for the district of 
Kansas. 

This was an action instituted by the Citi- 
zens' Saving & Loan Association of Cleve- 
land against the city of Topeka on interest 
coupons attached to bonds issued by the de- 
fendant under Acts Kan. Feb. 29, 1872, and 
March 2, 1872, empowering cities to issue 
bonds for the encourage- nient and establish- 
ment of manufactories therein, and such oth- 
er enterprises as may tend to develop and 
improve them. A demurrer interposed to 
the declaration by the defendant was sustain- 
ed, and a judgment was rendered in favor of 
defendant, and plaintiff brought error. Af- 
firmed. 

Alfred Ennis, for plaintiff in eiTor. Ross, 
Burns, and A. L. Williams, contra. 

Mr. .Justice MILLER delivered the opinion 
of the court. 

Two grounds are taken in the opinion of 
the circuit judge and in the argument of 
counsel for defendant, on which it is insisted 
that the section of the statute of February 
29th, 1872, on which the main reliance is pla- 
ced to issue the bonds, is unconstitutional. 

The first of these is, that by section five 
of article twelve of the constitution of that 
state it is declared that provision shall be 
made by general law for the organization of 
cities, towns, and villages; and their power 
of taxation, assessment, borrowing money, 
contracting debts, and loaning their credit, 
shall be so restricted as to i)revent the abuse 
of such power. 

The argument is that the statute in ques- 
tion is void because it authorizes cities and 
towns to contract debts, and does not con- 
tain any restriction on the power so confer- 
red. But whether the statute which confers 
power to contract debts should always con- 
tain some limitation or restriction, or wheth- 
er a general restriction applicable to all cas- 
es should be passed, and whether in the ab- 
sence of both the grant of power to contract 
is wholly void, are questions whose solution 
we prefer to remit to the state courts, as in 
tins case we find ample reason to sustain the 
demurrer on the second ground on which it 
is argued by counsel and sustained by the 
circuit court. 

That proposition is that the act authorizes 
the towns and other municipalities to which 
it applies, by issuing bonds or loaning their 
credit, to take the propei-ty of the citizen un- 
der the guise of taxation to pay these bonds, 
and use it in aid of the enterprises of others 
which are not of a public character, thus per- 
verting the right of taxation, which can only 

1 Dissenting opinion of Mr. Justice Clifford 
omitted. 



be exercised for a public use, to the aid of 
individual interests and personal purposes of 
profit and gain. 

The proposition as thus broadly stated is 
not new, nor is the question which it raises 
difficult of solution. 

If these municipal corporations, which are 
in fact subdivisions of the state, and which 
for many reasons are vested with quasi legis- 
lative powers, have a fund or other property 
out of which they »an pay the debts which 
they contract, without resort to taxation, it 
may be within the power of the legislature 
of the state to authorize them to use it in aid 
of projects strictly private or personal, but 
which would in a secondary manner con- 
tribute to the public good; or ■^'here there is 
property or money vested in a coii^oration of 
the kind for a particular use, as public wor- 
ship or charity, the legislature ma.v pass laws 
authorizing them to make contracts in refer- 
ence to this property, and incur debts pay- 
able from that source. 

But such instances are few and excep- 
tional, and the proposition is a very broad 
one, that debts contracted by municipal cor- 
porations must be paid, if paid at all, out of 
taxes which they may lawfully levy, and that 
all contracts creating debts to be paid in fu- 
ture, not limited to payment from some other 
source, imply an obligation to pay by taxa- 
tion. 

It follows that in this class of cases the 
right to contract must be limited by the right 
to tax, and if in the given case no tax can 
lawfully be levied to pay the debt, the cun- 
tract itself is void for want of authority to 
make it. 

If this were not so, tliese corporations could 
make valid promises, which they have no 
means of fulfilling, and on which even the 
legislature that created them can confer no 
such power. The validity of a contract which 
can only be fulfilled by a resort to taxation, 
depends on the power to levy the tax for that 
purpose. 2 

It is, therefore, to be inferred that when 
the legislature of the state authorizes a coun- 
ty or city to contract a debt by bond, it in- 
tends to authorize it to levy such taxes as 
are necessary to pay the debt, unless there 
is in the act itself, or in some general stat- 
ute, a limitation upon the power of taxation 
which repels such an inference. 

With these remarks and with the reference 
to the authorities which support them, we 
assume that luih ss the legislature of Kansas 
had the right to authorize the counties and 
towns in that state to levy taxes to be used 
in aid of manufacturing enterprises, conduct- 
ed by individuals, or private corporations, for 
pui-poses of gain, the law is void, and the 
bonds issued under it are also void. We 

2 Sharpless v. Mayor, 21 Pa. St. 147. 167; 
Hanson v. Vernon. 27 Iowa, 28; Allen v. Inhab- 
itants of Jay. 60 Me. 127; I^owell v. City of Bo.s- 
ton. 111 ^Ltss. 454; Whiting y. Fond du Lac» 
25 Wis. 188. 



LrMITATlOXS IMPOSED BY STATE CONSTITUTIONS. 



173 



proceed to the inquiry whether such a power 
exists in the legislature of the state of Kan- 
sas. 

We have already said the question is not 
new. The subject of the aid voted to rail- 
roads by counties and towns has been brought 
to the attention of the courts of almost ev- 
ery state in the Union. It has been thor- 
oughly discussed and is still the subject of 
■discussion in those courts. It is quite true 
that a decided preponderance of authority is 
to be found in favor of the proposition that 
the legislatures of the states, unless resti'ict- 
ed by some special provisions of their consti- 
tutions, may confer upon these municipal 
bodies the right to take stock in corporations 
■created to build railroads, and to lend their 
credit to such corporations. Also to levy the 
necessary taxes on the inhabitants, and on 
property within their limits subject to gen- 
eral taxation, to enable them to pay the 
debts thus incurred. But very few of these 
<ioui'ts have decided this without a division 
among the judges of which they were com- 
posed, while others have decided against the 
existence of the power altogether. 3 

In all these cases, however, the decision 
has turned upon the question whether the 
taxation bj^ which this aid was afforded to 
the building of railroads was for a public 
purpose. Those Avho came to the conclusion 
that it was, held the laws for that purpose 
valid. Those who could not reach that con- 
■clusion held them void. In all the contro- 
versy this has been the turning-point of the 
judgments of the courts. And it is safe to 
say that no court has held debts created in. 
aid of railroad companies, by counties or 
towns, valid on any other ground than that 
the pui'pose for which the taxes were lev- 
ied was a public use, a puipose or object 
which it was the right and the duty of 
state governments to assist bj^ money i*ais- 
ed from the people by taxation. The argu- 
ment in opposition to this power has been, 
that railroads built by corioorations organ- 
ized mainly for purposes of gain — the roads 
which they built being under their control, 
and not that of the state — were private and 
not public roads, and the tax assessed on 
the people went to swell the profits of in- 
dividuals and not to the good of the state, or 
the benefit of the public, except in a remote 
and collateral way. On the other hand it 
was said that roads, canals, bridges, navi- 
gable streams, and all other highways had in 
all times been matter of public conceni. 
That such channels of travel and of the car- 
rying business had always been established, 
improved, regulated by the state, and that 
the railroad had not lost this character be- 
cause constructed by individual enterprise, 
aggregated into a corporation. 



3 State v. Wapello Co., 9 Iowa, 308: Hanson 
V. Vernon, 27 Iowa, 28; Sharpless v. Mayor. 21 
Pa. St. 1-17; Whiting v. Foud du Lac, 25 Wis. 

188. 



We are not prepared to say that the latter 
view of it is not the true one, especially as 
there are other characteristics of a public 
natui'e conferred on these corporations, such 
as the power to obtain right of way, their 
subjection to the laws which govern com- 
mon carriers, and the like, which seem to 
justify the proposition. Of the disastrous 
consequences which have followed its recog- 
nition by the courts and which were predict- 
ed when it was first established there can be 
no doubt. 

We have referred to this history of the con- 
test over aid to railroads by taxation, to 
show that the strongest advocates for the 
validity of these laws never placed it on the 
ground of the unlimited power in the state 
legislature to tax the people, but conceded 
that where the purpose for which the tax 
was to be issued could no longer be justly 
claimed to have this public character, but 
was purely in aid of private or personal ob- 
jects, the law authorizing it was beyond the 
legislative power, and was an unauthorized 
invasion of private right. •* 

It must be conceded that there are such 
rights in every free government bej^ond the 
control of the state. A government which 
recognized no such rights, which held the 
lives, the liberty, and the property of its 
citizens subject at all times to the absolute 
disposition and unlimited control of even 
the most democratic depository of power, is 
after all but a despotism. It is true it is a 
despotism of the man3^ of the majority, if 
you choose to call it so, but it is none the 
less a despotism. It may well be doubted if 
a man is to hold all that he is accustomed to 
call his own, all in which he has placed his 
happiness, and the security of which is es- 
sential to that happiness, under the unlimit- 
ed dominion of others, whether it is not 
wiser that this power should be exercised by 
one man than by many. 

The theory of our governments, state and 
national, is opposed to the deposit of unlimit- 
ed power anywhere. The executive, the leg- 
islative, and the judicial branches of these 
governments are all of limited and defined 
powers. 

There are limitations on such power which 
grow out of the essential nature of all free 
governments. Implied reservations of indi- 
vidual rights, without which the social com- 
pact could not exist, and which are respected 
by all governments entitled to the name. No 
court, for instance, would hesitate to declare' 
void a statute which enacted that A. and B. 
who were husband and wife to each other 
should be so no longer, but that a. snould 
thereafter be the husband of C, and B. the 
wife of D. Or which should enact that the 
homestead now owned by A. should no longer 



4 Olcott V. Supervisors, 10 Wall. 689: People 
V. Salem, 20 Mich. 1.^2; .Tenldns v. Andover. 103 
Mass. 9-1; Dill. Mun. Corp. § 587; 2 Redf. R. 
R. 398, rule 2. 



174 



THE PUWEll OF TAXATION. 



be his, but sboiikl henceforth lie the property 

of B.5 

Of all the powers conferred upon jiovern- 
lueut that of taxation is most Ihible to abuse, 
(iiven a purpose or object for which taxation 
may be lawfully used and the extent of its 
exercise is in its very nature unlimited. It 
is true that express limitation on the amount 
of tax to be levied or the things to be taxed 
may be imposed by constitution or statute, 
but in most instances for Avhich taxes are 
levied, as the support of government, the 
prosecution of war. the national defence, 
any limitation is unsafe. The entire re- 
sources of the people should in some in- 
stances be at the disposal of the government. 

The power to tax is, therefore, the stron- 
gest, the most pervading of all the j)owei's of 
government, reaching directly or indirectly 
to all classes of the pet)ple. It was .said by 
Chief Jiistice Marshall, in the case of Mc- 
Culloch v. Maryland. 4 Wheat. 481, that the 
power to tax is the power to destroy. A 
striking instance of the truth of the proposi- 
tion is seen in the fact that the existing tax 
of ten per cent, imposed by the United States 
on the circulation of all other banks than 
the National banks, drove out of existence 
every state bank of circulation within a 
year or two after its passage. This power 
can as readily be employed against one class 
of individuals and in favor of another, so as 
to ruin the one> class and give unlimited 
wealth and prosperity to the other, if there 
is no implied limitation of the uses for which 
the power may be exercised. 

To lay with one hand the power of the 
government on the property of the citizen, 
and with the other to bestow it upon favored 
individuals to aid private enterprises and 
build up private fortunes, is none the less a 
robbery because it is done undei- the forms 
of law and is called taxation. This is not 
legislation. It is a decree under legislative 
forms. 

Nor is it taxation. A "tax," says Webstei-'s 
Dictionary, "is a rate or sum of money as- 
sessed on the person or property of a citi- 
zen by government for the use of the nation 
or state." "Taxes are burdens or charges 
imposed by the legislature upon persons or 
propei-ty to raise money for public purposes." 
Cooley, Const. Lim. 479. 

('oulter, .1.. in Northern Liberties v. St. 
John's Church, 13 Pa. St. 104.o says, very 
forcibly, "I think the common mind has ev- 
erywhere taken in the understanding that 
taxes are a public imposition, levied by au- 
thority of the government for the purpose of 
carrying on the government in all its ma- 



5 AVhiting v. Fond du Lac. 2.'> Wis. 188; Coo- 
ley, Const. Lim. 129, 175, 487; Dill. Mini. Corn. 

§ 587. 

c See, also. Pray v. Northern Liberties, 31 Pa. 
St. (i*J: In re New York, 11 Johns. 77: Camden 
v. Allen. 2(! N. J. Law. 3r)8; Sliarpless v. Mayor, 
supra; Hanson v. Vernon. 27 Iowa, 47; Whit- 
ing v. Fond du Lac, 25 \\'is. 188. 



chinery and operations— that they are im- 
posed for a public purpose." 

We have established, we think, beyond 
caAil that there can be no lawful ta.x which 
is not laid for a public purpose. It may 
not be easy to draw the line in all cases so 
as to decide what is a public purpose in this 
sense and what is not. 

It is undoubtetlly the duty of the legisla- 
ture which imposes or authorizes municipali- 
ties to impose a tax to see that it is iu>t to 
be used for purposes of private interest in- 
stead of a public use, and the courts can only 
be justified in interposing when a viohition 
of this principle is clear and the reason for 
interference cogent. And in deciding wheth- 
er, in the given case, the object for which the 
taxes are assessed falls upon the one side or 
the other of this line, they must be governed 
mainly by the course and usage of the gov- 
ernment, the objects for which taxes have 
been customarily and by long course of legis- 
lation levied, what objects or purposes have 
been considered necessary to the support and 
for the proper use of the government, wheth- 
er state or municipal. Whatever lawfully 
pertains to this and is sanctioned by time 
and the acquiescence of the people may well 
be held to belong to the public use. and prop- 
er for the maintenance of gooil government, 
though this may not be the only criterion of 
rightful taxation. 

But in the case before us, in which the 
towns are authorized to contribute aid by 
way of taxation to any class of manufac- 
turers, there is no difticulty in holding that 
this is not such a public purpose as Ave have 
been considering. If it be said that a bene- 
fit results to the local public of a town by 
establishing manufactures, the same may be 
said of any other business or pursuit which 
employs capital or labor. The merchant, 
the mechanic, the innkeeper, the banker, the 
builder, the steamboat owner are equally pro- 
moters of the public good, and equally de- 
serving the aid of the citizens by forced con- 
tributions. No line can be drawn in favor 
of the manufacturer which avouUI not open 
the coffers of the public treasury to the im- 
portunities of two-thirds of the business men 
of the city or town. 

A reference to one or two cases adjudicated 
liy courts of the highest character will be 
sufiicient, if an.v authority were needed, to 
sustain us in this proposition. 

In the case of Allen v. Inhabitants of Jay. 
(■>(> Me. 124. the town meeting had voted to 
loan their credit to the amount of $10,0fK). to 
Hutchins and Lane, if they would invest 
ipl2,0()0 in a steam saw-mill, grist-mill, and 
box-factory machinery, to be built in that 
town by them. There was a provision to se- 
cure the town by mortgage on the mill, and 
the selectmen AA-ere authorized to issue toAvn 
bonds for the amount of the aid so A'oted. 
Ten of the taxable inhabitants of the toAvn 
tiled a bill to enjoin the selectmen from issu- 
ing the bonds. 



LIMITATIONS IMPOSED BY STATE COKSTITUTIONS. 



1' 



The supreme judicial court of Maine, iu an 
able opinion by Chief Justice Appleton, held 
that this was not a public purpose, and that 
the town could levy no taxes on the inhabit- 
ants in aid of the enterprise, and could, there- 
fore, issue no bonds, though a special act of 
the legislature had ratified the vote of the 
town, and they granted the injunction as 
prayed for. 

Shortly after the disastrous fire in Boston, 
in 1872, which laid an important part of that 
city in ashes, tlie governor of the state con- 
vened the legislative body of Massachusetts, 
caMed the "General Court," for the express 
purpose of atrording some relief to the city 
and its people from the sufferings consequent 
on this great calamity. A statute was pass- 
ed, among others, which authorized the city 
to issue its bonds to an amount not exceed- 
ing twenty millions of dollars, which bonds 
were to be loaned, under proper guards for 
securing the city from loss, to the owners of 
the ground whose buildings had been de- 
stroyed by fire, to aid them in rebuilding. 

In the case of Lowell v. City of Boston 
(111 Mass. 454), in the supreme judicial court 
of Massachusetts, the validity of this act was 
considered. We have been furnished a copy 
of the opinion, though it is not yet reported 
in the regular series of that court. The Amer- 
ican Law Review for July, 1873, says that 
the question was elaborately and ably ar- 
gued. The court, in an able and exhaustive 
opinion, decided that the law was unconsti- 
tutional, as giving a right to tax for other 
than a public purpose. 

The same court had previously decided, in 
the case of Jenkins v. Anderson, 103 Mass. 
74, that a statute authorizing the town au- 
thorities to aid by taxation a school estab- 
lished by the Avill of a citizen, and governed 
by ti'ustees selected by the will, was void 
because the school was not under the control 



of the town ofticers, and was not, therefore, 
a public purpose for which taxes could be 
levied on the inhabitants. 

The same principle precisely was decided 
by the state court of Wisconsin in the case 
of Curtis V. Whipple, 24 Wis. 35(J. In that 
case a special statute which authorized the 
town to aid the Jefferson Liberal Institute 
was declared void because, though a school 
of learning, it was a private enterprise not 
under the control of the town authorities. 
In the subsequent case of Whiting v. Fond 
du Lac, already cited, the principle is fully 
considered and reaffirmed. 

These cases are clearly in point, and they 
assert a principle which meets our cordial 
approval. 

We do not attach any importance to the 
fact that the town authorities paid one in- 
stalment of interest on these bonds; Such 
a payment works no estoppel. If the legis- 
lature was without power to authorize the 
issue of these bonds, and its statute attempt- 
ing to confer such authority is void, the mere 
payment of interest, which was equally un- 
authorized, cannot create of itself a power 
to levy taxes, resting on no other foundation 
than the fact that they have once been ille- 
gally levied for that purpose. 

The act of March 2, 1872, concerning inter- 
nal improvements, can give no assistance to 
these bonds. If we could hold that the cor- 
poration for manufacturing wrought-iron 
bridges was within the meaning of the stat- 
ute, which seems very ditftcult to do, it would 
still be liable to the objection that money 
raised to assist the company was not for a 
public purpose, as we have already demon- 
strated. 

Judgment affirmed. 

Mr. Justice CLIFFORD, dissenting. 



17G CIVIL RIGHTS A^D THEIR PROTECTIOX BY THE CONSTITUTIONS. 



"THE CIVIL RIGHTS CASES." i 

UNITED STA;I?ES v. STANLEY. 

[On a Certificate of Division in Opinion lietwoen 

tlie .Judges of the Circuit Court of the 

United States for the District 

of Kansas.] 

UNITED STATES v. RYAN. 

[In Error to the Circuit Court of the United 
States for the District of California.] 

UNITED STATES v. NICHOLS. 

[On a Certificate of Division in Opinion between 

the .Judges of the Circuit Court of the 

United States for the Western 

District of Missouri.] 

UNITED STATES v. SIN(}LETON. 

,'[0n a Certificate of Division in Opinion between 

the Judges of the Circuit Court of the 

United States for the Soutliern 

District of New York.] 

ROBINSON and wife v. MEMPHIS & 
CHARLESTON R. CO. 

Iln Error to the Circuit Court of the United 

State for the Western District 

of Tennessee.] 

(3 Sup. Ct. 18, 109 U. S. 3.) 

Supreme Court of the United States. Oct. 15, 
1883. 

Sol. Gon. Phillips, for plaintiff, the Unitetl 
States. No counsel for defendants, Stanley, 
Ryau, Nichols, and Sinj^letou. Wni. M. 
Randolph, for plaintiffs in error, Robinson and 
■wife. W. Y. C Humes, for defendant in 
error, the Memphis & Charleston R. Co. 

BRADLEY, .T. These eases are all founded 
on the first and second sections of the act of 
congress known as the "Civil Rijjfhts Act," 
passed March 1, 187."), entitled "An act to pro- 
tect all citizens in their civil and legal 
rights." 18 Stat. 33.3. Two of the cases, 
those against Stanley and Nichols, are in- 
dictments for denying to persons of color the 
accommodations and privileges of an inn or 
hotel; two of them, those against Ryau and 
Singleton, are, one an information, the other 
an indictment, for denying to individuals the 
privileges and accommodations of a theater, 
the information against Ryan being for refus- 
ing a colored person a seat in the dress cir- 
cle of JNIaguire's theater in San Francisco; 
and the indictment against Singleton being 
for denying to another person, whose color is 
not stated, the full enjoyment of the accom- 
modations of the theater known as the Grand 
Opera House in New York, "said denial not 
being made for any reasons by law applicable 
to citizens of every race and color, and re- 
gardless of any previous condition of servi- 
tude." The case of Robinson and wife against 
the Memphis cV: Charleston Railroad Company 
was an action brought in the circuit court of 
the United States for the Western district of 
Tennessee, to recover the penalty of $500 

1 Dissenting opinion of Mr. Justice Harlan 
omitted. 



given by the second section of the act; and 
the gravamen was the refusal by the conduct- 
or of the railroad company to allow the wife 
to ride iu the ladies' car, for the reason, as 
stated in one of the counts, that she was a 
person of African descent. The jury render- 
ed a verdict for the defendants in this case 
upon the merits under a charge of the court, 
to which a bill of exceptions was taken by 
the plaintiffs. The case was tried on the as- 
sumption by both parties of the validity of 
the act of congress; and the principal point 
made by the exceptions was that the judge 
allowed evidence to go to the jury tending to 
show that the conductor had reisou to suspect 
that the plaintiff, the wife, was an improper 
persou, because she was in company with a 
young mau whom he supposed to be a white 
nuin, and on that account inferred that there 
was some improper connection between them; 
and the judge charged the jury, iu substance, 
that if this was the conductor's bona fide rea- 
son for excluding the w^oman from the car, 
they might take it mto consideration on the 
question of the liability of the company. 
Tlie case is brought here by writ of error at 
the suit of the plaintiffs. The cases of Stan- 
ley, Nichols, and Singleton come up on cer- 
tificates of division of opinion between the 
judges below as to the constitutionality of 
the first and second sections of the act refer- 
red to; and the case of Ryan, on a wnit of er- 
ror to the judgment of the circuit court for 
the district of California sustaining a demur- 
rer to the information. 

It is obvious that the primary and impor- 
tant question in all the cases is the consti- 
tutionality of the law; for if the law is un- 
constitutional none of the prosecutions can 
stand. 

The sections of the law referred to pro- 
vide as follows: 

"Section 1. That all persons within the ju- 
risdiction of the United States shall be en- 
titled to the full and equal enjoyment of the 
accommodations, advantages, facilities, and 
privileges of inns, public conveyances on land 
or water, theater s, and other places of public 
amusement; subject only to the conditions 
and limitations establislied by law, and ap- 
plicable alike to citizens of every race and 
color, regardless of any ijrevious condition 
of seiwitude. 

"Sec. 2. That any person who shall violate 
the foregoing section by denying to any cit- 
izen, except for reasons by law applicable to 
citizens of every race and color, and regard- 
less of any previous condition of servitude, 
the full enjoyment of any of the acconmio- 
datious, advantages, facilities, or privileges 
in said section enumerated, or by aiding or 
inciting such denial, shall, for every such of- 
fense, forfeit and pay the sum of $.500 to the 
person aggi'ieved thereby, to be recovered in 
an action of debt, with full costs; and shall, 
also, for every such offense, be deemed guilty 
of a misdemeanor, and upon conviction there- 
of shall bt fined not less than $500 nor more 



EQUAL PROTECTION OF THE LAWS. 



177 



than $1,000, or shall be imprisoned not less 
than 30 days nor more than one j^ear: Pro- 
vided, that all persons may elect to sue for 
the penalty aforesaid, or to proceed under 
their rights at common law and by state stat- 
utes; and having so elected to proceed in the 
one mode or the other, their right to proceed 
in the other jurisdiction shall be barred. But 
this provision shall not apply to criminal pro- 
'ceedings, either under this act or the criminal 
law of any state: And provided, further, 
that a judgment for the penalty in favor of 
the party aggrieved, or a judgment upon an 
indictment, shall be a bar to fither prosecu- 
tion respectively." 

Are these sections constitutional? The 
first section, which is the principal one, can- 
not be fairly understood without attending 
to the last clause, which qualifies the pre- 
ceding part. The essence of the law is, not 
to declare broadly that all persons shall be 
entitled to the full and equal enjoyment of 
the accommodations, advantages, facilities, 
and privileges of inns, public conveyances, 
and theaters; but that such enjoyment shall 
not be subject to any conditions applicable 
only to citizens of a particular race or color, 
or Avho had been in a previous condition of 
servitude. In other words, it is the purpose 
of the law to declare that, in the enjoyment 
of the accommodations and privileges of 
inns, public conveyances, theaters, and oth- 
er places of public amusement, no distinc- 
tion shall be made between citizens of dif- 
ferent race or color, or between those who 
have, and those who have not, been slaves. 
Its effect is to declare that in all inns, pub- 
lic conveyances, and places of amusement, 
•colored citizens, whether formerly slaves or 
not, a»d citizens of other races, shall have 
the same accommodations and privileges In 
all inns, public conveyances, and places of 
amusement, as are enjoyed by white citi- 
zens; and vice versa. The second section 
makes it a penal offense in any person to 
deny to any citizen of any race or color, re- 
gardless of previous servitude, any of the 
accommodations or privileges mentioned in 
the first flection. 

Has congress constitutional power to make 
such a law? Of course, no one will contend 
that the power to pass it was contained in 
the constitution before the adoption of the 
last three amendments. The power is sought, 
first, in the fourteenth amendment, and the 
views and arguments of distinguished sena- 
tors, advanced while the law was under con- 
sideration, claiming authority to pass it by 
virtue of that amendment, are the principal 
arguments adduced in favor of the power. 
We have carefully considered those argu- 
ments, as was due to the eminent ability of 
those who put them forward, and have felt, 
in all its force, the weight of authority which 
always invests a law that congress deems 
itself competent to pass. But the responsi- 
bility of an independent judgment is now 
thrown upon this court; and we are bound 

SMITH, CONST. LAW — 13 



to exercise it according to the best lights we 
have. 

The first section of the fourteenth amend- 
ment, — which is the one relied on, — after de- 
claring who shall be citizens of the United 
States, and of the several states, is prohib- 
itory in its character, and prohibitory upon 
the states. It declares that "no state shall 
make or enforce any law which shall abridge 
the privileges or immunities of citizens of 
the United States; nor shall any state de- 
prive any person of life, liberty, or property 
without due process of law; nor deny to 
any person within its jurisdiction the equal 
protection of the laws." It is state action 
of a particular character that is prohibited. 
Individual invasion of individual rights is 
not the subject-matter of the amendment. 
It has a deeper and broader scope. It nulli- 
fies and makes void all state legislation, and 
state action of every kind, which impairs 
the privileges and immunities of citizens of 
the United States, or which injures them in 
life, liberty, or property without due process 
of law, or which denies to any of them the 
equal protection of the laws. It not only 
does this, but, in order that the national 
will, thus declared, may not be a mere bru- 
tum fulmen, the last section of the amend- 
ment invests congress Avith power to en- 
force it by appropi'iate legislation. To en- 
• force what? To enforce the prohibition. 
To adopt appropriate legislation for correct- 
ing the effects of such prohibited state laAV 
and state acts, and thus to render them ef- 
fectually null, void, and innocuous. This is 
the legislative power conferred upon con- 
gress, and this is the whole of it. It does 
not invest congress with power to legislate 
upon subjects which are within the domain 
of state legislation; but to provide modes of 
relief against state legislation, or state ac- 
tion, of the kind referred to. It does not au- 
thorize congress to create a code of munic- 
ipal law for the regulation of private rights; 
but to provide modes of redress against the 
operation of state laws, and the action of 
statQ officers, executive or judicial, when 
these are subversive of the fundamental 
rights specified in the amendment. Positive 
rights and privileges are undoubtedly se- 
cured by the fourteenth amendment; but 
they are secured by Avay of prohibition 
against state laws and state proceedings af- 
fecting those rights and privileges, and by 
power given to congress to legislate for the 
purpose of carrying such prohibition into 
effect; and such legislation must necessarily 
be predicated upon such supposed state laws 
or state proceedings, and be directed to the 
correction of their operation and effect. A 
quite full discussion of this aspect of the 
amendment may be found in U. S. v. Oruik- 
shank, 92 U. S. 542; Virginia v. Rives, 100 
U. S. 313, and Ex parte Virginia, Id. 339. 

An apt illustration of this distinction juay 
be found in some of the provisions of the 
original constitution. Take the subject of 



178 CIVIL 1UGHT.S AND TIIEIU PHOTECTIOX BY THE CONSTITUTIONS. 



contrnets. for oxaiiii)U'. The constitution 
probibittd the states from passing any law 
impairing the obligation of conti*acts. This 
did not give to congress power to provide 
laws for tlie general enforcement of con- 
tracts; nor power to invest the coiu'ts of the 
Tnited States with jurisdiction over con- 
tracts, so as to enable parties to sue upon 
them in those courts. It did, however, give 
the power to provide remedies by which the 
impairment of contracts by state legislation 
might be counteracted and corrected; and 
this power was exercised. The remedy 
which congress actually provided was that 
contained in the twenty-fifth section of the 
judiciary act of ITW), giving to the supreme 
court of the Tnited States jurisdiction by 
writ of error to review the final decisions 
of state courts whenever they should sustain 
the validity of a state statute or authority, 
alleged to be repugnant to the constitution 
or laws of the United States. By this means, 
if a state law was passed impairing the ob- 
ligation of a conti'act, and the state tribunals 
sustained the validity of the law, the mis- 
chief could be corrected in this court. l"he 
legislation of congress, and the proceedings 
provided for under it, were corrective in 
their character. No attempt was made to 
draw into the United States courts the liti- 
gation of contracts generally, and no such 
attempt would have been sustained. We do 
not say that the remedy provided was the 
only one that might have been pi-ovided in 
that case. Probably congress had power to 
pass a law giving to the courts of the Unit- 
ed States direct jurisdiction over contracts 
alleged to be impaired by a state law; and, 
under the broad provisions of the act of 
March :{, 187.5, giving to the circuit courts 
jurisdiction of all cases arising under the 
constitution and laws of tlie United States, 
it is possible that such jurisdiction now ex- 
ists. But under that or any other law, it 
must appear, as Avell by allegation as proof 
at tlie trial, that the constitution had been 
violated by the action of the state legisla- 
ture. Some obnoxious state law passed, or 
that might be passed, is nec«>ssary to be as- 
sumed in order to lay the foundation of any 
fedei'al remedy in the case, an<l for the very 
sntticient reason that the constitutional pro- 
hibition is against state laws impairing the 
obligation of contracts. 

And .so in the present case, until some 
state law has been passed, or some state 
action through its otficers or agents has been 
taken, adver.se to the rights of citizens 
sought to be protected by the fourteenth 
amendment, no legislation of the United 
States under said amendment, nor any pro- 
ceeding under such legislation, can be call- 
ed into activity, for the prohibitions of the 
amendment are against state laws and acts 
done under state authoi-ity. Of course, leg- 
islation may and should be provided in ad- 
vance to met the exigency when it arises, 
but it should be adapted to the mischief and 



wrong which the amendment was intended 
to provide against; and that is, state laws 
or state action of some kind adverse to the 
rights of the citizen secured by the amend- 
ment. Such legislation cannot propei'ly cov- 
er the whole domain of rights appertaining^ 
to life, liberty, and property, defining them 
and providing for their vindication. That 
would be to establish a code of municipal 
law regulative of all private rights between 
man and man in society. It would be to 
nuike congress take the place of the state- 
legislatures and to supersede them. It is ab- 
surd to affirm that, because the rights of 
life, liberty, and property (which include all 
civil rights tliat men have) are by the amend- 
ment sought to be protected against inva- 
sion on the part of the state without due 
process of law, congress may, therefore, pro- 
vide due ])rocess of law for their vindication 
in every ca.se; and that, because the denial 
by a state to any persons of the ecpial pro- 
tection of the laws is prohibited by the 
amendment, therefore congress may estab- 
lish laws for their ecpial protection. In fine, 
the legislation whicli congress is autliorized 
to adopt in this behalf is not general legis- 
lation upon the rights of the citizen, but cor- 
rective legislation; that is, such as may be 
necessary and proper for counteracting such 
laws as the states may adopt or enforce, and 
which by the amendment they are prohibit- 
ed from making or enforcing, or such acts 
and proceedings as the states may commit 
or take, and which by the amendment they 
are prohibited from committing or taking. 
It is not necessary for us to state, if we 
could, what legislation would be proper for 
congress to adopt. It is sufficient for us 
to examine whether the law in question is 
of that character. 

An inspection of the law shows that it 
makes no i-efereuce whatever to any suppos- 
ed or apprehended violation of the fourteenth 
amendment on the part of the states. It is 
not predicated on any such view. It pro- 
ceeds ex directo to declare that certain acts 
committed by individuals shall be deemed of- 
fenses, and shall be prosecuted and punished 
by proceedings in the courts of the United 
States. It does not profess to be corrective 
of any constitutional wrong committed by 
the states; it does not make its operation to- 
depend upon any such wrong committed. It 
applies equally to cases arising in states 
which have the justest laws respecting the 
personal rights of citizens, and whose author- 
ities are ever ready to enforce such laws as 
to those which arise in states that may have 
violated the prohibition of the amendment. 
In other words, it steps into the domain of 
local juris])rudence, and lays down rules for 
the conduct of individuals in society towards 
each other, and imposes sanctions foi- the en- 
forcement of those I'ules, without i-eferring 
in any manner to any supposed action of the 
state or its autliorities. 

If this legislation is appropriate for en- 



p:qual protection of the laws. 



179 



forcinj^ the prohibitions of tlie amenduieat, it 
is difficult to see where it is to stop. Wliy 
may not congress, with equal show of au- 
thority, enact a code of hiAYS for the enforce- 
ment and vindication of all rights of life, lib- 
erty, and propei-tyV If it is supposable that 
the states may deprive persons of life, liber- 
ty, and property without due process of law, 
(and the amendment itself does suppose this,) 
why should not congress proceed at once to 
prescribe due process of law for the protec- 
tion of eveiy one of these fundamental rights, 
in every possible case, as well as to prescribe 
equal privileges in inns, public conveyances, 
and theaters. The truth is that the implica- 
tion of a power to legislate in this manner is 
based upon the assumption that if the states 
are forbidden to legislate or act in a particu- 
lar way on a particular subject, and power is 
conferred upon congress to enforce the pro- 
hibition, this gives congress power to legis- 
late generally upon that subject, and not 
merely power to provide modes of redress 
against such state legislation or action. The 
assumption is certainly unsound. It is re- 
pugnant to the tenth amendment of the con- 
stitution, which declares that powers not 
delegated to the United States by the consti- 
tution, nor prohibited by it to the states, are 
reserved to the states respectively or to the 
people. 

We have not overlooked the fact that the 
fourth section of the act now under consider- 
ation has been held by this court to be con- 
stitutional. That section declares "that no 
citizen, possessing all other qualifications 
which are or may be prescribed by law, shall 
be disqualified for service as grand or petit 
juror in any court of the United States, or of 
any state, on account of race, color, or pre- 
vious condition of servitude; and any officer 
or other person charged with any duty in the 
selection or summoning of jui-ors who shall 
exclude or fail to summon any citizen for the 
cause aforesaid, shall, on conviction thereof, 
be deemed guilty of a misdemeanor, and be 
fined not more than five thousand dollars." 
In Ex parte Virginia. 100 U. S. 839, it was 
held that an indictment against a state offi- 
cer under this section for excluding persons 
of color from the jury list is sustainable. 
But a moment's attention to its terms will 
show that the section is entirely corrective 
jn its character. Disqualifications for serv- 
ice on juries are only created by the law, and 
the first part of the section is aimed at cer- 
tain disqualifying laws, namely, those which 
make mere race or color a disqualification; 
and the second clause is directed against 
those who, assuming to use the authority of 
the state government, carry into effect such 
a rule of disqualification. In the Virginia 
case, the state, through its officer, enforced 
a rule of disqualification which the law was 
intended to abrogate and counteract. Wheth- 
er the statute-book of the state actually laid 
down any such rule of disqualification or not, 
the state, thi-ough its officer, enforced such a 



rule; anu it is against such state action, 
through its officere and agents, that the last 
clause of the section is directed. This as- 
pect of the law was deemed sufficient to di- 
vest it of any unconstitutional character, and 
makes it differ widely from the first and sec- 
ond sections of the same act which we are 
now considering. 

These sections, in the objectionable features 
before referred to, are different also from the 
laAv ordinarily called the "Civil Rights Bill," 
originally passed April 9, 1SG6, and re-enact- 
ed with some modifications in sections 1(5, 17. 
IS, of the enforcement act, passed May 31, 
1870. That law, as re-enacted, after declar- 
ing that all persons wdthin the jurisdiction of 
the United States shall have the same right 
in every state and territory to make and en- 
force contracts, to sue, be parties, give evi- 
dence, and to the full and equal benefit of all 
laws and proceedings for the security of per- 
sons and property as is enjoyed by white cit- 
izens, and shall be subject to like punish- 
ment, pains, penalties, taxes, licenses, and 
exactions of every kind, and none other, any 
law, statute, ordinance, regulation, or cus- 
tom to the contrary notwithstanding, pro- 
ceeds to enact that any person who, under 
color of any law, statute, ordinance, regula- 
tion, or custom, shall subject, or cause to be 
subjected, any inhabitant of any state or ter- 
ritory to the deprivation of any rights secur- 
ed or protected by the preceding section, 
(above quoted,) or to different punishment, 
pains, or penalties, on account of such person 
being an alien, or by reason of his color or 
race, than is prescribed for the punishment 
of citizens, shall be deemed guilty of a mis- 
demeanor, and subject to fine and imprison- 
ment as specified in the act. This law is 
clearly corrective in its character, intended 
to counteract and furnish redress against 
state laws and proceedings, and customs hav- 
ing the force of law. which sanction the 
wrongful acts specified. In the Revised Stat- 
utes, it is true, a very important clause, to- 
wit, the words "any law, statute, ordinance, 
regulation, or custom to the contrary not- 
withstanding," which gave the declaratory 
section its point and effect, are omitted; but 
the penal part, by which the declaration is 
enforced, and which is really the effective 
part of the law, retains the reference to state 
laws by making the penalty apply only to 
those who should subject parties to a depri- 
vation of their rights under color of any stat- 
ute, ordinance, custom, etc., of any state or 
territory, thus preserving the con'ective char- 
acter of the legislation. Rev. St. §§ 1977, 
1978, 1979, 5510. The civil rights bill here 
referred to is analogous in its character to 
what a lavv' would have been under the orig- 
inal constitution, declaring that the validity 
of contracts should not be impaired, and that 
if any person bound by a contract should i"e- 
fuse to comply with it under color or i^re- 
tense that it had been rendered void or in- 
valid by a state law, he should be liable to 



180 CIVIL RIGHTS AND THEIR PROTECTIOX BY THE CONSTITUTIONS. 



an action upon it in the courts of the United 
States, with the addition of a penalty for set- 
ting up such an unjust and unconstitutional 
defense. 

In this connection it is proper to state thai 
civil rights, such as are guarantied by the 
constitution against state aggression, cannot 
be impaired by the wrongful acts of individ- 
uals, unsupported by state authority in the 
shape of laws, customs, or judicial or execu- 
tive proceedings. The wrongful act of an in- 
dividual, unsupported by any such authority, 
is simply a private wrong, or a crime of that 
individual; an invasion of the rights of the 
injured party, it is true, whether they affect 
his person, his property, or his reputation; 
but if not sanctioned in some way by the 
state, or not done under state authority, his 
rights remain in full force, and may pre- 
sumably be vindicated by resort to the laws 
of the state for redress. An individual can- 
not deprive a man of his right to vote, to 
hold property, to buy and to sell, to sue in 
the courts, or to be a witness or a juror; he 
may, by force or fraud, interfere with the 
enjoyment of the right in a particular case; 
he may commit an assault against the person, 
or commit murder, or vise ruffian violence at 
the polls, or slander the good name of a fel- 
low-citizen; but unless protected in these 
wrongful acts by some shield of state law or 
state authority, he cannot destroy or injure 
the right, he will only render himself ame- 
nable to satisfaction or punishment; and ame- 
nable therefor to the laws of the state where 
the Avrongful acts are committed. Hence, in 
all those cases where the constitution seeks 
to protect the rights of the citizen against 
discriminative and unjust laws of the state 
by prohibiting such laws, it is uot individual 
offenses, but abrogation and denial of rights, 
which it denounces, and for which it clothes 
the congress with power to provide a remedy. 
This abrogation and denial of rights, for 
which the states alone were or could be re- 
sponsible, was the great seminal and funda- 
mental wrong which was intended to be rem- 
-edied. And the remedy to be provided must 
necessarily be predicated upon that wrong. 
It must assume that in the cases provided for, 
the evil or wrong actually committed rests 
upon some state law or state authority for its 
excuse and perpetration. 

Of course, these remarks do not apply to 
those cases in which congress is clothed 
with direct and plenary powei's of legislation 
over the whole subject, accompanied with an 
express or implied denial of such power to 
the states, as in the regulation of commerce 
with foreign nations, among the several 
states, and wHh the Indian tribes, the coin- 
ing of money, the establishment of post-of- 
fices and post-roads, the declaring of war. 
etc. In these cases congress has power to 
pass laws for regulating the subjects speci- 
fied, in evei-y detail, and theconduct and trans- 
actions of individuals in respect thereof. But 
Where a subject is not submitted to the gen- 



eral legislative power of congress, but is only 
submitted thereto for the purpose of render- 
ing effective some prohibition against particu- 
lar state legislation or state action in refer- 
ence to that subject, the iwwer given is limit- 
ed by its object, and any legislation by 
congress in the mattermust necessarily be cor- 
rective in its character, adapted to counter- 
act and redress the operation of such pro- 
hibited state laws or proceedings of state of- 
ficers. 

If the principles of interpretation which we 
have laid down are correct, as we deem them 
to be,-^and they are in accord with the prin- 
ciples laid down in the cases before referred 
to, as well as in the recent case of U. S. v. 
Harris (decided at the last term of this court) 
1 Sup. Ct. GOl,— it is cleju that the law in 
question cannot be sustained by any gitiut 
of legislative power made to congress by the 
fourteenth amendment. That .amendment 
prohibits the states from denying to anj^ per- 
son the equal protection of the laws, and 
declares that congress shall have power to 
enforce, by appropriate legislation, the pro- 
visions of the amendment. The law in ques- 
tion, without any reference to adverse state 
legislation on the subject, declares that all 
persons shall be entitled to equal accommo- 
dations and privileges of inns, public con- 
veyances, and plav^-es of public amusement, 
and imposes a penalty upon any individual 
who shall deny to any citizen such equal ac- 
commodations and privileges. This is not 
corrective legislation; it is primary and di- 
rect; it takes immediate and absolute posses- 
sion of the subject of the right of admission 
to inns, public conveyances, and places of 
amusement. It supersedes and displaces 
state legislation on the same subject, or only 
allows it permissive force. It ignores such 
legislation, and assumes that the matter is 
one that belongs to the domain of national 
regulation. Whether it would not have been 
a more effective pi'otection of the rights of 
citizens to have clothed congress with ple- 
nary power ove?" the whole subject, is not 
now the question. What we have to decide 
is, whether such plenary power has been con- 
ferred upon congress by the fourteenth 
amendment, and, in our judgment, it has not. 

We have discussed the question presented 
by the law on the assumption that a right to 
enjoy equal accommodations and privileges 
in all inns, public conveyances, and places of 
public amusement, is one of the essential 
rights of the citizen which no state can 
abridge or interfere with. Whether it is 
such a right or not is a different question, 
which, in the vieAV we have taken of the 
validity of the law on the ground already 
stated, it is not necessary to examine. 

We have also discussed the validity of the 
law in reference to cases arising in the states 
only; and not in reference to cases arising in 
the teiTitories or the Dist-rict of Columbia, 
which are subject to the plenary legislation 
of congress in every branch of municipal 



EQUAL PROTECTIQX OF THE LAWS. 



181 



regulation. Wbetlier the law would be a 
valid one as applied to the territories and the 
district is not a question for consideration 
in the cases before us; they all being cases 
arising within the limits of states. And 
whether congress, in the exercise of its pow- 
er to regulate commerce among the several 
states, might or might not pass a law regulat- 
ing rights in public conveyances passing 
from one state to another, is also a question 
which is not now before us, as the sections 
in question are not conceived in any such 
view. 

But the power of congress to adopt direct 
and primary, as distinguished from correct- 
ive, legislation on the subject in hand, is 
sought, in the second place, from the thir- 
teenth amendment, which abolishes slavery. 
This amendment declares "that neither slav- 
ery, nor involuntary servitude, except as a 
punishment for crime, whereof the party shall 
have been duly convicted, shall exist within 
the United States, or any place subject to 
their jurisdiction;" and it gives congress 
power to enforce the amendment by appro- 
priate legislation. 

This amendment, as well as the fourteenth, 
is undoubtedly self-executing without any 
ancillary legislation, so far as its terms are 
applicable to any existing state of circumstan- 
ces. By its own unaided force and effect it 
abolished slavery, and established universal 
freedora. Still, legislation may be necessary 
and proper to meet all the various cases and 
circumstances to be affected by it, and to 
prescribe proper modes of redress for its vio- 
lation in letter or spirit. And such legisla- 
tion may be primary and direct in its charac- 
ter; for the amendment is not a mere pro- 
hibition of state laws establishing or uphold- 
ing slavery, but an absolute declaration that 
slavery or involuntary servitude shall not 
exist in any part of the United States. 

It is true that slavery cannot exist with- 
out law any more than property in lands and 
goods can exist without law, and therefore 
the thirteenth amendment may be regarded 
as nullifying all state laws which establish 
or uphold slavery. But it has a reflex char- 
acter also, establishing and decreeing uni- 
versal civil and political freedom throughout 
the United States; and it is assumed that the 
power vested in congress to enforce the arti- 
cle by appropriate legislation, clothes con- 
gress with power to pass all laws necessaiy 
and proper for abolishing all badges and inci- 
dents of slavery in the United States; and 
upon this assumption it is claimed that this is 
sufficient authority for declaring by law that 
all persons shall have equal accommodations 
and privileges in all inns, public conveyances, 
and places of public amusement; the argu- 
ment being that the denial of such equal ac- 
commodations and privileges is in itself a 
subjection t "> a species of sei-vitude within the 
meaning of the amendment. Conceding the 
major proposition to be true, that congress 
has a right to enact all necessary and proper 



laws for the obliteration and prevention of 
slavery, with all its badges and incidents, is 
the minor proposition also true, that the de- 
nial to any person of admission to the accom- 
modations and privileges of an inn, a public 
conveyance, or a theater, does subject that 
person to any form of servitude, or tend to 
fasten upon him any badge of slavery ? If it 
does not, then power to pass the law is not 
found in the thirteenth amendment. 

In a very able and learned presentation of 
the cognate question as to the extent of the 
rights, privileges, and immunities of citizens 
which cannot rightfully be abridged by state 
laws under the fourteenth amendment, made 
in a former case, a long list of burdens and . 
disabilities of a servile character, incident to 
feudal vassalage in France, and which were 
abolished by the decrees of the national as- 
sembly, was presented for the purpose of 
showing that all inequalities and observances 
exacted by one man from another, were serv- 
itudes or badges of slavery, which a great 
nation, in its effort to establish universal lib- 
erty, made haste to wipe out and destroy. 
But these were servitudes imposed by the old 
law, or by long custom which had the force 
of law, and exacted by one man from another 
without the latter's consent. Should any 
such servitudes be imposed by a state law, 
there can be no doubt that the law would be 
repugnant to the fourteenth, no less than to 
the thirteenth, amendment; nor any greater 
doubt that congress has adequate power to 
forbid any such servitude from being exacted. 

But is there any similarity between such 
servitudes and a denial by the owner of an 
inn, a public conveyance, or a theater, of its 
accommodations and privileges to an indi- 
vidual, even though the denial be founded 
on the race or color of that individual? 
Where does any slavery or servitude, or badge 
of either, arise from such an act of denial? 
Whether it might not be a denial of a right 
which, if sanctioned by the state law, would 
be obnoxious to the prohibitions of the four- 
teenth amendment, is another question. But 
what hac it to do with the question of slav- 
ery? 

It may be that by the black code, (as it 
was called,) in the times when slavery pre- 
vailed, the proprietors of inns and public 
conveyances were forbidden to receive per- 
sons of the African race, because it might 
assist slaves to escape from the control of 
their masters. This was merely a means of 
preventing such escapes, and was no part of 
the servitude itself. A law of that kind 
could not have any such object now, how- 
ever justly it might be deemed an invasion 
of the party's legal right as a citizen, and 
amenable to the prohibitions of the four- 
teenth amendment. 

The long existence of African slavery in 
this country gave us very distinct notions of 
what it was, and what were its necessai-y in- 
cidents. Compulsory service of the slave 
for the benefit of the master, restraint of his 



182 CIVIL U GUTS AND THEIR PROTECTION BY THE CONSTITUTIONS. 



movemeuts except by the master's will, dis- 
ability to hold property, to make contracts, 
to have a standinjr in court, to be a witness 
against a white person, and such like burdens 
and incapacities were the inseparable inci- 
dents of the institution. Severer punislimeuts 
for crimes were imposed on the slave than 
on free persons guilty of the same offenses. 
Congress, as we have seen, by the civil rights 
bill of ISGO. passed In view of the thirteenth 
amendment, before the foui'teenth was adopt- 
ed, undertook to wipe out these burdens and 
disabilities, the necessary incidents of slavery, 
constituting its substance and visible form; 
and to secure to all citizens of every race and 
color, and without regard to previous servi- 
tude, those fundamental rights which are the 
essence of civil freedom, namel.v, the same 
right to make and enforce contracts, to sue, 
be parties, give evidence, and to inherit, pur- 
chase, lease, sell, and convey property, as is 
enjoyed by white citizens. Whether this leg- 
islation was fully authorized by the thirteenth 
amendment alone, without the sui)port which 
it afterwards received from the fourte(>nth 
amendment, after the adoption of which it 
was re-enacted with some additions, it is not 
necessary to inquire. It is referred to for 
the purpose of slLowing that at that time (in 
ISGti) congress did not assume, under the au- 
thority given b.v the thirteenth amendment, 
to adjust what may be called the social rights 
of men and races in the community; but only 
to declare and vindicate those fundamental 
rights* which appertain to the essence of citi- 
zenship, and the enjoyment or deprivation of 
which constitutes the essential distinction be- 
tween freedom and shivery. 

We must not forget that the province and 
scope of the thirteenth and fourteenth amend- 
ments are different: the former simply abol- 
ished slavery: the latter i)rohibited the states 
from abridging llie privileges or immmiities 
of citizens of the I'nitfHl States, from depriv- 
ing them of life, libert.v, or property without 
due process of law, and from denying to any 
the equal protection of the laws. The amend- 
ments are different, and the powers of con- 
gress under them are different. AVhat con- 
gress has power to do imder one. it may not 
have power to do under the other. I'nder 
the thirteenth amendment, it has only to do 
with slavery and its incidents. Ihider the 
fourteenth amendment, it has power to coun- 
teract and render nugatory all state laws and 
proceedings which have the effect to abridge 
any of the privileges or immunities of citi- 
zens of the T'nited States; or to deprive them 
of life, liberty, or property without due pro- 
cess of law. or to deny to any of them the 
equal protection of the laws. Tender the 
thirteenth amendment the legislation, so far 
as necessary or proper to eradicate all forms 
and incidents of slavery- and involuntary serv- 
itude, may be direct and piimary. operating 
upon the acts of individuals, whether sanc- 
tioned by state legislation or not; under the 
fourteenth, as Ave have already shown, it 



must uec-essarily be. and can only be, cor- 
rective in its character, addressed to counter- 
act and afford relief against state regulations 
or proceedings. 

The only question under the present head, 
therefore, is, whether the refusal to any per- 
sons of the accommodations of an inn, or a 
public conve.vance, or a place of public 
amusement, by an individual, and without 
any sanction or support from an.v state law 
or regulation, does inflict upon such persons 
any manner of servitude, or form of slavery, 
as those terms are understood in this coun- 
tr.vV 31a ny wrongs may be obnoxious to 
the prohibitions of the fourteenth amend- 
ment which are not, in any just sense, inci- 
dents or elements of slavery. Such, for ex- 
ample, would be the taking of private prop- 
erty without due process of law; or allowing 
persons who have committed certain crimes 
(horse-stealing, for example) to be seized and 
hung b.v the posse comitatus without regular 
trial; or denying to any person, or class of 
persons, the right to i)ursue an.v peaceful 
avocations allowed to others. What is call- 
ed class legislation would belong to this cat- 
egory, and would oe cbnoxious to the pro- 
hibitions of the fourteenth amendment, but 
would not necessaiiiy be so to the thirteenth, 
when not involving the idea of an.v subjection 
of one man to another. The thirteenth 
amendment has respect, not to distinctions 
of race, or class, or color, but to slavery. 
The fourteenth amendment extends its pro- 
tection to races and classes, and prohibits 
any state legislation which has the effect of 
denying to any race or class, or to any in- 
dividual, the equal protection of the laws. 

Now. conceding, for the sake of the argu- 
ment, that the admission to an inn. a public 
conve.vance. or a place of public amusement, 
on equal terms witn all other citizens, is 
the right of every man and all classes of 
men. is it any more than one of those rights 
which the states b.v the fourteenth amend- 
ment are forbidden to den.v to any person? 
and is the constitution violated until the de- 
nial of the right has some state sanction or 
authority? Can the act of a mere individ- 
ual, the owner of the inn, the public convey- 
ance, or place of amusement, refusing the 
accommodation, be justly regarded as impos- 
ing an.v badge of slaveiy or servitude upon 
the applicant, or onl.v as inflicting an or- 
dinary civil injury, properly cognizable by 
the laws of the state, and presumably sub- 
ject to redress by those laws until the con- 
trary appears? 

After giving to these questions all the con- 
siderations which their importance demands, 
we are forced to the conclusion that sxich 
an act of refusal has nothing to do with 
slavery or involuntary servitude, and that if 
it is violative of any right of the party, his 
redress is to be sought under the laws of 
the state; or, if those laws are adverse to 
his rights and do uot protect him, his rem- 
edy will be found in the corrective legisla- 



EQUAL PKOTECTIOX OF THE LAWS. 



183 



tion which congress has adopted, or may 
adopt, for counteracting the effect of state 
laws, or state action, prohibited by the four- 
teenth amendment. It would be running tlie 
slaA'ery argument into the ground to make 
it apply to every act of discrimination which 
a person may see fit to make as to the guests 
he will entertain, o as to the people he will 
take into his coac'i or cab or car. or admit 
to his concert of theater, or deal with in 
other matters ol intercourse or business. 
Innkeepers and public carriers, by the laws 
of all the states, so far as we are aware, 
are bound, to the extent of their facilities, 
to furnish proper accommodation to all unob- 
jectionable persons who in good faith apply 
for them. If the laws themselves make any 
unjust discrimination, amenable to the pro- 
hibitions of the fourteenth amendment, con- 
gress has full power to afford a remedy un- 
<ler that amendment and in accordance with 
it. 

When a man has emerged from slaverj', 
and by the aid of beneficent legislation has 
shaken off the inseparable concoiuitants of 
that state, there must be some stage in the 
progress of his elevation when he takes the 
rank of a mere citizen, and ceases to be the 
special favorite of the laws, and when his 
rights as a citizen, or a man, are to be pro- 
tected in the ordinary modes by which other 
men's rights are protected. There were thou- 
sands of free colored people in this countiy 
before the abolition of slavery, enjoying all 
the essential rights of life, liberty, and prop- 
erty the same as white citizens; yet no one, 
at that time, thought that it was any inva- 
sion of their personal status as freemen be- 



cause they were not admitted to all the priv- 
ileges enjoyed by white citizens, or because 
they were subjected to discriminations in 
the enjoyment of accommodations in inns, 
public conveyances, and places of amuse- 
ment. Mere discriminations on account of 
race or color were not regarded as badges 
of slavery. If, since that time, the enjoy- 
ment of equal rights in all these respects has 
become established b.v constitutional enact- 
ment, it is not by force of the thirteenth 
amendment, (wliich merely abolishes slav- 
eiy,) but by force of the fourteenth and fif- 
teenth amendments. 

On the whole, we are of opinion that no 
countenance of authority for the passage of 
the law in question can be found in either 
the thirteenth or fourteenth amendment of 
the constitution; and no other ground of 
authority for its passage being suggested, 
it must necessarily be declared void, at least 
so far as its operation in the several states 
is concerned. 

This conclusion disposes of the cases now 
under consideration. In the cases of U. S. 
V. Ryan, and of Robinson v. Memphis & C. 
R. Co., the judgments must be affirmed. In 
the other cases, the answer to be given will 
be, that the first and second sections of the 
act of congress ol March 1, 1875, entitled 
"An act to protect all citizens in their civil 
and legal rights," are unconstitutional and 
void, and that judgment should be rendered 
upon the several indictments in those cases 
accordingly. And it is so ordered. 

Mr. .Justice HARLAN dissents. 



184 CIVIL RIGHTS AND THEIR PROTECTIOX BY THE CONSTITUTIONS. 



BOYD et al. v. UNITED STATES. i 

(6 Sup. Ct. 524, 116 U. S. 616.) 

Supreme Court of the United States. Feb. 1, 
1886. 

In error to the circuit court of the United 
States for the Southern district of New York. 

E. B. Smith and S. G. Clarke, for plaintiffs 
in error. Sol. Gen. Goode, for defendant in 
error. 



BRADLEY, J. This was an information 
filed by the district attorney of the United 
States in the district court for the Southern 
district of New York, in July, 1884, in a 
cause of seizure and forfeiture of property, 
against 3o cases of plate slass, seized by the 
collector as forfeited to the "United States, 
under the twelfth section of the "Act to 
amend the customs revenue laws," etc., pass- 
ed June 22, 1874, (18 St. 186.) It is declared 
by that section that any owner, importer, 
consifrnee, etc., who shall, with intent to de- 
fraud the revenue, make, or attempt to make, 
any entry of imported merchandise, by means 
of any fraudulent or false invoice, affidavit, 
letter, or paper, or by means of any false 
statement, written or verbal, or who shall be 
guilty of any willful act or omission, by 
means whereof the United States shall be de- 
prived of the lawful duties, or any portion 
thereof, accruing upon the merchandise, or 
any portion thereof, embraced or referred to 
in such invoice, affidavit, letter, paper, or 
statement, or affected by such act or omis- 
sion, shall for each offense be fined in any 
sum not exceeding $.5,000 nor less than ^50, 
or be imprisoned for any time not exceeding 
two years, or both; and, in addition to such 
fine, such merchandise shall be forfeited. 

The charge was that the goods in question 
were imported into the United States to the 
port of New York, subject to the payment of 
duties; and that the owners or agents of said 
merchandise, or other person unknown, com- 
mitted the alleged fraud, which was describ- 
ed in the words of the statute. The plaintiffs 
in error entered a claim for the goods, and 
pleaded that they did not become forfeited in 
manner and form as alleged. On the trial of 
the cause it became important to show th<» 
quantity and value of the glass contained in 
29 cases previously imported. To do this the 
district attorney offered in evidence an order 
made by the district judge under the fifth 
section of the same act of June 22, 1874, 
directing notice under seal of the court to be 
given to the claimants, requiring them to pro- 
duce the invoice of the 29 cases. The claim- 
ants, in obedience to the notice, but objecting 
to its validity and to the constitutionality of 
the law, produced the invoice; and when it 
was offered in evidence by the district attor- 

1 Concurring opinion of Mr. Justice Miller 
omitted. 



ney they objected to its reception on the 
ground that, in a suit for forfeiture, no evi- 
dence can be compelled from the claimants 
themselves, and also that the statute, so far 
as it compels production of evidence to be 
used against the claimants, is unconstitutional 
and void. The evidence being received, and 
the trial closed, the jury found a verdict for 
the United States, condemning the 35 cases 
of glass which were seized, and judgment of 
forfeiture was given. This judgment was af- 
firmed by the circuit court, and the decision 
of that court is now here for review. 

As tlie question raised upon the order for 
the production by the claimants of the invoice 
of the 29 cases of glass, and the proceedings 
had thereon, is not only an important one in 
the determination of the present case, but is 
a very grave question of constitutional law, 
involving the personal security, and privi- 
leges and immunities of the citizen, we will 
set forth the order at large. After the title 
of the court and temi, it reads as follows, to- 
wit: 
"The United States of America against E. A. 

B., 1-35, Thirty-Five Cases of Plate Glass. 

"Whereas, the attorney of the United States 
for the Southern district of New York has til- 
ed in this court a written motion in the 
above-entitled action, showing that said ac- 
tion is a suit or proceeding other than crim- 
inal, arising under the customs revenue laws 
of the United States, and not for penalties, 
now pending undetermined in this court, and 
that in his belief a certain invoice or paper 
belonging to and under the control of the 
claimants herein will tend to prove certain 
allegations set forth in said written motion, 
hereto annexed, made by him on behalf of 
the United States in said action, to-wit, the 
invoice from the Union Plate Glass Company, 
or its agents, covering the twenty-nine cases 
of plate glass marked G. H. B., imported 
from Liverpool. England, into the port of 
New York, in the vessel Baltic, and entered 
by E. A. Boyd & Sons at the office of the col- 
lector of customs of the port and collection 
district aforesaid, on April 7, 1884, on entry 
No. 47,108: 

"Now. therefore, by virtue of the power in 
the said court vested by section 5 of the act 
of June 22, 1874, entitled 'An act to amend 
the customs revenue laws and to repeal moie- 
ties,' it is ordered that a notice under the 
seal of this court, and signed by the clerk 
thereof, be issued to the claimants, requiring 
them to produce the invoice or paper afore- 
said before this court in the court-rooms 
thereof in the United States post-office and 
court-house building in the city of New York 
on October 16, 1884, at eleven o'clock a. m., 
and thereafter at such other times as the 
court shall appoint, and that said United 
States attorney and his assistants and sucb 
persons as he shall designate shall be allow- 
ed before the court, and under its direction 
and in the presence of the attorneys for the 



SEARCHES AND SEIZURES. 



18ff 



claimants, if they shall attend, to make ex- 
amination of said invoice or paper and to 
take copies thereof; but the claimants or 
their agents or attorneys shall have, subject 
to the order of the court, the custody of such 
invoice or paper, except pending such exam- 
ination." 

The fifth section of the act of June 22, 
1874, under which this order was made, is 
in the following words, to- wit: 

"In all suits and proceedings other than 
criminal, arising under any of the revenue 
laws of the United States, the attorney 
representing the government, whenever in 
his belief any business book, invoice, or pa- 
per belonging to, or under the control of, 
the defendant or claimant, will tend to 
prove any allegation made by the United 
States, may make a written motion, partic- 
ularly describing such book, invoice, or pa- 
per, and setting forth the allegation which 
he expects to prove; and thereupon the 
court in which suit or proceeding is pend- 
ing may, at its discretion, issue a notice 
to the defendant or claimant to produce 
such book, invoice, or paper in court, at a 
day and hour to be specified in said no- 
tice, which, together with a copy of said 
motion, shall be served formally on the de- 
fendant or claimant by the United States 
marshal by delivering to him a certified 
copy thereof, or otherwise serving the same 
as original notices of suit in the same court 
are sei-ved; and if the defendant or claim- 
ant shall fail or refuse to produce such 
book, invoice, or paper in obedience to such 
notice, the allegations stated in the said 
motion shall be taken as confessed, unless 
his failure or refusal to produce the same 
shall be explained to the satisfaction of the 
court. And if produced the said attorney 
shall be permitted, under the direction of 
the court, to make examination (at which 
examination the defendant or claimant, or 
his agent, may be present) of such entries 
"in said book, invoice, or paper as relate 
to or tend to prove the allegation aforesaid, 
and may offer the same in evidence ou be- 
half of the United States. But the owner 
of said books and papers, his agent or at- 
torney, shall have, subject to the order of 
the court, the custody of them, except pend- 
ing their examination in court as aforesaid." 
18 St. 187. 

This section was passed in lieu of the 
second section of the act of March 2, 1867, 
entitled "An act to regulate the disposition 
of the proceeds of fines, penalties, and for- 
feitures incurred under the laws relating to 
the customs, and for other purposes," (14 
St. 547,) which section of said last-mention- 
ed statute aiithorized the district judge, on 
complaint and affidavit that any fraud on 
the revenue had been committed by any 
person interested or engaged in the importa- 
tion of merchandise, to issue his warrant 
to the marshal to enter any premises where 



any invoices, books, or papers wei:e deposit^ 
ed relating to such merchandise, and take 
posses-ion of such books and papers and, 
produce them before said judge, to be sub- 
ject to his order, and allowed to be examin- 
ed by the collector, and to be retained as 
long as the judge should deem necessary. 
This law being in force at the time of the 
revision, was incorporated into sections 
3091-3093, of the Revised Statutes. 

The section last recited was passed in lieu 
of the seventh section of the act of March. 
3, 18(J3, entitled "An act to prevent and 
punish frauds upon the revenue," etc. 12 
St. 737. The seventh section of this act was 
in substance the same as the second section 
of the act of 1867, except that the warrant 
was to be directed to the collector instead 
of the marshal. It was the first legislation 
of the kind that ever appeared on the stat- 
ute book of the United States, and, as seen 
from its date, was adopted at a period of 
great national excitement, when the powers 
of the government were subjected to a 
severe strain to protect the national ex- 
istence. The clauses of the constitution, to 
which it is contended that these laws are 
repugnant, are the fourth and fifth amend- 
ments. The fourth declares: "The right of 
the people to be secure in their persons, hous- 
es, papers, and effects, against unreasonable 
searches and seizures, shall not be violated, 
and no warrants shall issue, but upon proba- 
ble cause, supported by oath or affirmation, 
and particularly describing the place to be 
searched, and the persons or things to be 
seized." The fifth article, among other 
things, declares that no person "shall be com- 
pelled in any criminal case to be a witness 
against himself." But, in regard to the 
fourth amendment, it is contended that, 
whatever might have been alleged against 
the constitutionality of the acts of 1863 and 
1867, that of 1874, under which the order in 
the present case was made, is free from con- 
stitutional objection, because it does not au- 
thorize the search and seizure of books and 
papers, but only requires the defendant or 
claimant to produce them. That is so; but it 
declares that if he does not produce them, the 
allegations which it is affirmed they will 
prove shall be taken as confessed. This is 
tantamount to compelling their production, 
for the prosecuting attorney will always be 
sure to state the evidence expected to be de- 
rived from them as strongly as the case will 
admit of. It is true that certain aggravat- 
ing incidents of actual search and seizure, 
such as forcible entry into a man's house and 
searching among his papers, are • wanting, 
and to this extent the proceeding under the 
act of 1874 is a mitigation of that which was 
authorized by the former acts; but it accom- 
plishes the substantial object of those acts^ 
in forcing from a party evidence against him- 
self. It is our opinion, therefore, that a com- 
pulsory production of a man's private papers- 



J8(> CIVJL EIGHTS AND THEIR PROTECTIOX BY THE CONSTITUTIONS. 



to establish a criminal charge against him, 
or to forfeit his property, is within the scope 
of the fourth amendment to the constitution, 
in all cases in which a search and seizure 
would be, because it is a material ingredient, 
and effects the sole object and purpose of 
search and seizure. 

The principal question, however, remains 
to be considered. Is a search and seizure, 
or, what is equivalent thereto, a compulsoi"j' 
production of a man's private papei's, to be 
used in evidence against him in a proceed- 
ing to forfeit his property for alleged fraud 
against the revenue laws — is such a proceed- 
ing for such a puiiwse an "unreasonable 
search and seizure" within the meaning of 
the fourth amendment of the constitution? or 
is it a legitimate proceeding? It is contend- 
ed by the counsel for the government, that 
it is a legitimate proceeding, sanctioned by 
long usage, and the authority of judicial de- 
cision. No doubt long usage, acquiesced in 
by the courts, goes a long way to prove that 
there is some i)lausible ground or reason for 
it in the law, or in the historical facts which 
have imposed a particular construction of 
the law favorable to such usage. It is a 
maxim that, consuetudo est optimus inter- 
pres legum; and another maxim that, con- 
temporanea, expositio est optima et fortis- 
sima in lege. But we do not find any long 
usage or any contemporary construction of 
the constitution, which would justify any of 
the acts of congress now under considera- 
tion. As before stated, the act of lSr.;'> was 
the first act in this country, and we might 
say, either in this country or in England, so 
far as we have been able to ascertain, which 
authorized the search and seizure of a man's 
private papers, or the compulsoi-y production 
of them, for the purpose of using them in 
evidence against him in a criminal case, or in 
a proceeding to enfoi-ce the forfeiture of his 
property. Even the act under which the ob- 
noxious writs of assistance were issued - did 
not go as far as this, but only authorized the 
examiuation of shii)s and vessels, and per- 
sons found therein, for the pui-pose of find- 
ing goods prohibited to be imported or export- 
ed, or on which the duties were not paid, and 
to enter into and search any suspected vaults, 
cellars, or warehouses for such goods. The 
search for and seizure of stolen or forfeited 
gowls. or goods liable to duties and conceal- 
ed to avoid the payment thereof, are totally 
different things from a search for and seizure 
of a man's private books and papers for the 
purpose of obtaining information therein con- 
tained, or of using them as evidence against 
him. The two things differ toto coelo. In 
the one case, the government is entitled to the 
possession of the property; in the other it is 
not. The seizure of stolen goods is author- 
ized by the common law; and the seizure of 
goods forfeited for a breach of the i-evenue 

2 13 & 14 Car. II. c. 11, § 5. 



laws, or concealed to avoid the duties paya- 
ble on them, has been authorized by English 
statutes lor at least two centuries past; » 
and the like seizures have been aufliorized 
by our own revenue acts from the commence- 
ment of the government. 

The first statute passed by congress to reg- 
ulate the collection of duties, the act of .luly 
.■>1, 1789, (1 St. 43.) contains provisions to this 
effect. As this act was passed by the same 
congress which proposed for adoption the 
original amendments to the constitution, it is 
clear that the members of that body did not 
regard searches and seizures of this kin<l as 
"unreasonable," and they are not embraced 
within the prohibition of the amendment. 
So, also, the supervision authorized to be ex- 
ercised by officers of the I'evenue over the 
manufacture or custody of excisable articles, 
and the entries thereof in books required by 
law to be kept for their inspection, are nec- 
essjirily excepted out of the category of un- 
reasonable searches and seizures. So, also, 
the laws which provide for the search and 
seizure of articles and things which it is un- 
lawful for a person to have in his possession 
for the purpose of issue or disposition, such 
as counterfeit coin, lottery tickets, imple- 
ments of gambling, etc., are not within this 
category. Com. v. Dana, 2 Mete. :^20. Many 
other things of this character might be enu- 
merated. The entry upon premises, made by 
a sherift" or other otticer of the law, for the 
purpose of seizing goods and chattels by vir- 
tue of a judicial writ, such as an attachment, 
a scHpiesti'ation, or an execution, is not with- 
in the prohibition of the fourth or fifth 
amendment, or any other clause of the consti- 
tutiou; nor is the examination of a. defend- 
ant under oath after an ineffectual execution, 
for the purpose of discovering secreted prop- 
erty or credits, to be applied to the payment 
of a judgment against him, obnoxious to 
those amendments. But, when examined 
with care, it is manifest that there is a total 
uulikeness of these official acts and proceed- 
ings to that which is now under considera- 
tion. In the case of stolen goods, the owner 
fi-om whom they were stolen is entitled to 
their possession, and in the case of excisa- 
liie or dutiable articles, the government has 
an interest in them for the payment of the 
duties thereon, and until such duties are paid 
has a right to keep them under observation, 
or to pursue and drag them from conceal- 
ment; and in the case of goods seized on at- 
tachment or execution, the creditor is enti- 
tled to their seizure in satisfaction of his 
debt; and the examination of a defendant 
under oath to obtain a discovery of concealed 
property or credits is a proceeding merely civ- 

•"■ 12 Car. II. c. 19: 13 & 14 Car. II. c. 11: G 
& 7 W. & M. c. 1; 6 Geo. I. c. 21; 26 Geo. III. 
0. 59; 29 Geo. III. c. G8, § 153. etc.: and see 
the article "p]xcise," etc., in Burn, .lu.st. and 
Williams, .lust., passim, and 2 Evans, St. 221, 
sub-pages 176, 190, 225, 3G1, 431, 447. 



SEARCHES AND SEIZURES. 



Ib7 



11 to effect the ends of justice, and is no 
more than what the court of chancery would 
direct on a bill for discovery. Whereas, by 
the proceeding now under consideration, the 
court attempts to extort from the party his 
private books and papers to make him liable 
for a penalty or to forfeit his property. 

In order to ascertain the nature of the pro- 
ceedings intended by the fourth amendment 
to the constitution under the terms "unrea- 
sonable searches and seizures," it is only 
necessary to recall the contemporary or then 
recent history of the controversies on the 
subject, both in this country and in England. 
The practice had obtained in the colonies of 
issuing writs of assistance to the revenue of- 
ficers, empowering them, in their discretion, 
to search suspected places for smuggled 
goods, which James Otis pronounced "the 
woi-st instrument of arbitrary power, the 
most destructive of English liberty and the 
fundamental principles of law, that ever was 
found in an English law book;"' since they 
placed "the liberty of every man in the hands 
of every petty officer." * This was in Feb- 
ruary, 1761. in Boston, and the famous de- 
bate in which it occurred was perhaps the 
most prominent event which inaugurated the 
resistance ot the colonies to the oppressions 
of the mother country. "Then and there," 
said John Adams, "then and there Avas the 
first scene of the first act of opposition to 
the arbitrary claims of Great Britain. Then 
and there the child Independence was born." 
These things, and the events which took 
place in England immediately following the 
argument about writs of assistance in Bos- 
ton. Avere fresh in the memories of those 
who achieved our independence and estab- 
lished our form of government. In the pe- 
riod from 1762. when the North Briton was 
started by John Wilkes, to April, 1766, when 
the house of commons passed resolutions 
condemnatory of general warrants, whether 
for the seizure of persons or papers, occur- 
red the bitter controversy between the Eng- 
lish government and Wilkes, in Avhich the 
latter appeared as the champion of popular 
rights, and was, indeed, the pioneer in the 
contest which resulted in the abolition of 
some grievous abuses which had gradually 
crept into the administration of public af- 
fairs. Prominent and principal among these 
Avas the practice of issuing general Avarrants 
by the secretary of state, for searching pri- 
A'ate houses for the discovery and seizure of 
books and papers that might be used to con- 



4 Cooley, Const. Lim. .301-.S03. A very full 
and interesting accoiiut of this discussion will 
be found in the works of John Adams, vol. 2, 
Appendix A. pp. 523-525; vol. 10, pp. 183, 233, 
244, 256, etc., and in Quiucy's Reports, pp. 469- 
482; and see Paxton's Case, Id. 51-57, which 
was argued in November of the same year, 
<1761.) An elaborate history of the writs of 
assistance is given in the apjiendix to (juincy's 
Reports, above referred to, written l)y Horace 
Gray, Jr., Esq., now a member of this court. 



vict their OAvner of the charge of libel. Cer- 
tain numbers of the North Briton, particu- 
larly No. 45, had been very bold in denun- 
ciation of the government, and were esteem- 
ed heinously libelous. By authority of the 
secretary's Avarrant Wilkes' house was 
searched, and his papers Avere indiscrimin- 
ately seized. For this outrage he sued the 
perpetrators and obtained a A^erdict of £1,- 
000 against Wood, one of the party who 
made the search, and £4,000 against Lord 
Halifax, the secretary of state, Avho issued 
the Avarrant. The case, hoAvever, which Avill 
alAvays be celebrated as being the occasion 
of Lord Camden's memorable discussion of 
the subject, was that of Entick v. Carrington 
and Three Other King's Messengers, report- 
ed at length in 19 Hoav. St. Tr. 1029. The 
action was trespass for entering the plain- 
tiff's dAvelling-house in November, 1762, and 
breaking open his desks, boxes, etc., and 
searching and examining his papers. The 
jury rendered a special verdict, and the case 
Avas tAvice solemnly argued at the bar. Lord 
Camden pronounced the judgment of the 
court in Michaelmas term, 1765, and the law. 
as expounded by him, has been regarded as 
settled from that time to this, and his great 
judgment on that occasion is considered as 
one of the landmarks of English liberty. It 
Avas Avelcomed and applauded by the loA'ers 
of liberty in the colonies as well as in the 
mother country. It is regarded as one of the 
permanent monuments of the British consti- 
tution, and is quoted as such by the English 
authorities on that subject down to the pres- 
ent time. 5 

As every American statesman, during our 
revolutionary and formative period as a na- 
tion, was undoubtedly familiar Avith this 
jnonument of English freedom, and consid- 
ered it as the true and ultimate expression 
of constitutional laAV, it may be confidently 
asserted that its propositions Avere in the 
minds of those Avho framed the fourth 
amendment to the constitution, and were 
considered as sufficiently explanatory of 
Avhat Avas meant by unreasonable searches 
and seizures. We think, therefore, it is per- 
tinent to the present subject of discussion to 
quote somcAvhat largely from this celebrated 
judgment. After describing the power claim- 
ed by the secretary of state for issuing gen- 
eral search-Avarrants, and the manner in 
Avhich they AA^ere executed. Lord Camden 
says: 

"Such is the power, and therefore one 
would uataraUy expect that the laAV to Avar- 
rant it should be clear in propoi'tion as the 
poAver is exorbitant. If it is law, it Avill be 
found in our books; if it is not to be found 
there it is not laAV. 

"The gi'eat end for which men entered into 



5 See 3 May, Const. Hist. England, c. 11; 
Broom, Const. Law, 558; Cox, Inst. Eng. Gov. 
437. 



188 CIVIL R GHTS AXD THEIR PKOTECTIOX BY THE COXSTITUTIOXS. 



society was to secure their property. That 
right is preserved sacred and incommunica- 
ble in all instances where it has not been 
taken away or abridged by some public law 
for the good of the Avhole. The cases where 
this right of property is set aside by positive 
law are various. Distresses, executions, for- 
feitures, taxes, etc., are all of this descrip- 
tion, wherein every man by common consent 
gives up that right for the sake of justice 
and the general good. By the laws of Eng- 
land, every invasion of private property, be 
it ever so minute, is a trespass. No man 
can set his foot upon my ground without my 
license, but he is liable to an action, though 
the damage be nothing, which is proved by 
every declaration in trespass where the de- 
fendant is called upon to answer for bruis- 
ing the grass and even treading upon the 
soil. If he admits the fact, he is bound to 
show, by way of justification, that some pos- 
itive law has justified or excused him. The 
justification is submitted to the judges, who 
are to look into the books, and see if such a 
justification can be maintained by the text 
of the statute law, or by the principles of 
the common law. If no such excuse can be 
found or produced, the silence of the books 
is an authority against the defendant, and 
the plaintiff must have judgment. Accord- 
ing to this reasoning, it is now incumbent 
upon the defendants to show the law by 
which this seizure is warranted. If that 
cannot be done, it is a trespass. 

"Papers are the owner's goods and chat- 
tels; they are his dearest property, and are 
so far from enduring a seizure, that they 
will hardly bear an inspection; and though 
the eye cannot by the laws of England be 
guilty of a trespass, yet where private pa- 
pers are removed and carried away the se- 
cret nature of those goods will be an aggra- 
vation of the trespass, and demand more 
considerable damages in (hat respect. 
Where is the written law that gives any 
magistrate such a power? I can safely an- 
swer, there is none; and therefore it is too 
much for us without such authority, to pro- 
nounce a practice legal which would be sub- 
versive of all the comforts of societj\ 

"But though it cannot be maintained by 
any direct law, yet it bears a resemblance, 
as was urged, to the known case of search 
and seizure for stolen goods. I answer that 
the difference is apparent. In the one, I am 
permitted to seize my own goods, which are 
placed in the hands of a public offtcer till the 
felon's conviction shall entitle me to resti- 
tution. In the other, the party's own prop- 
erty is seized before and without conviction, 
and he has no power to reclaim his goods, 
even after his innocence is declared by ac- 
quittal. 

"The case of searching for stolen goods 
crept into the law by imperceptible practice. 
No less a person than my Lord Coke denied 
its legality, (4 Inst. 176;) and therefore, if 



the two cases resembled each other more 
than they do, we have no right, without an 
act of parliament, to adopt a new practice 
in the criminal law, Avhich was never yet 
allowed from all antiquity. Observe, too, 
the caution with which the law proceeds in 
this singular case. There must be a full 
charge upon oath of a theft committed. The 
owner must swear that the goods are lodged 
in such a place. He must attend at the ex- 
ecution of the warrant, to show them to the 
officer, who must see that they answer the 
description. * * * 

"If it should be said that the same law 
which has with so much circumspection 
guarded the case of stolen goods from mis- 
chief would likewise in this case protect the 
subject by adding proper checks; would re- 
quire proofs beforehand; would call up the 
servant to stand by and overlook; would 
require him to take an exact inventory, and 
deliver a copy,— my answer is that all these 
precautions would have been long since es- 
tablished by law if the power itself had 
been legal; and that the want of them is an 
undeniable argument against the legality of 
the thing." 

Then, after showing that these general 
warrants for search and seizure of papers 
originated with the Star Chamber, and nev- 
er had any advocates in Westminster Hall 
except Chief Justice Scroggs and his asso- 
ciates. Lord Camden proceeds to add: 

"Lastly it is urged as an argument of util- 
ity that such a search is a moans of de- 
tecting offenders by discovering evidence 
I wish some cases had been shown where 
the law forceth evidence out of the owner's 
custody by process. There is no process 
against papers ir civil causes. It has been 
often tried, but never prevailed. Nay, where 
the adversary has by force or fraud got pos- 
session of your own proper evidence there is 
no way to get it back but by action. In 
the criminal law such a proceeding was nev- 
er heard of; and yet there are some crimes, 
such, for instance, as murder, rape, robbery, 
and house-breaking, to say nothing of forgery 
and perjury, that are more atrocious than 
libeling. But our law has provided no pa- 
per-search in these cases to help forward the 
conviction. "Whether this proceedeth from 
the gentleness of the law towards criminals, 
or from a consideration that such a power 
would be more pernicious to the innocent 
than useful to the public, I will not say. It 
is very certain that the law obligeth no man 
to accuse himself, because the necessary 
means of compelling self-accusation, falling 
upon the iunocent as well as the guilty, 
would be both cruel and unjust; and it 
would seem that search for evidence is dis- 
allowed upon the same principle. Then, too, 
the innocent would be confounded with the 
guilty." 

After a few further observations, his lord- 
ship concludes thus: 



SEARCHES AND SEIZURES. 



189 



"I have now taken notice of everything 
that has been urged upon the present point; 
and upon the whole we are all of opinion . 
that the warrant to seize and carry away 
the party's papers in tne case of a seditious 
libel is illegal and void. "6 

The principles laid down in this opinion 
affect the very essence of constitutional lib- 
erty and security. They reach further than 
the concrete form of the case then before the 
court, with its adventitious circumstances; 
they apply to all invasions on the part of the 
government and its employes of the sanctity 
of a man's home and the privacies of life. 
It is not the breaking of his doors, and the 
rummaging of his drawers, that constitutes 
the essence of the offense; but it is the in- 
vasion of his indefeasible right of personal 
secui'ity, personal liberty, and private prop- 
erty, where that right has never been for- 
feited by his conviction of some public of- 
fense, — it is the invasion of this sacred right 
which underlies and constitutes the essence 
of Lord Camden's judgment. Breaking in- 
to a house and opening boxes and drawers 
are circumstances of aggravation; but any 
forcible and compulsory extortion of a man's 
own testimony, or of his private papers to 
be used as evidence to convict him of crime, 
or to forfeit his goods, is within the con- 
demnation of that judgment. In this regard" 
the fourth and fifth amendments run almost 
into each other. Can we doubt that when 
the fourth and fifth amendments to the con- 
stitution of the United States were penned 
and adopted, the language of Lord Camden 
was relied on as expressing the true doc- 
trine on the subject of searches and seizures, 
and as furnishing the true criteria of the rea- 
sonable and "unreasonable" character of 
such seizures? Could the men who proposed 
those amendments, in the light of Lord Cam- 
den's opinion, have put their hands to a 
law like those of March B, 1863, and March 
2, 1867, before recited i' If they could not, 
would they have approved the fifth section 
of the act of June 22, 1874, which was adopt- 
ed as a substitute for the previous laws? It 
seems to us that the question cannot admit 
of a doubt. They never would have ap- 
proved of them. The struggles against ar- 
biti-ai-y power in which they had been en- 
gaged for more than 20 years would have 
been too deeply engraved in their memories 
to have allowed them to approve of such in- 
sidious disguises oj. the old grievance which 
they had so deeply abhorred. 

The views of the first congress on the ques- 
tion of compelling a man to produce evi- 
dence against himself may be inferred from 
a remarkable section of the judiciary act of 
1789. The fifteenth section of that act in- 

6 See further as to searches and seizures. Story, 
Const. §§ 1901, 1902, and notes; Cooley, Const. 
Lim. 299; Sedgw. St. & Const. Law, (2d Ed.) 
498; Whart. Com. Amer. Law, § 560; Robin- 
son V. Richardson, 13 Gray, 454. 



troduced a great improvement in the law of 
procedure. The substance of it is found in 
section 724 of the Revised Statutes, and the 
section as originally enacted is as follows, to- 
wit: 

"All the said courts of the United States 
shall have power in the trial of actions at 
law, on motion and due notice thereof being 
given, to require the parties to produce books 
or writings in their possession or power, 
which contain evidence pertinent to the is- 
sue, in cases and under circumstances v>'here 
they might be compelled to produce the same 
by the ordinary rules of proceeding in chan- 
cery; and if a plaintiff shall fail to comply 
with such order to produce books or writings 
it shall be lawful for the courts respectively, 
on motion, to give the like judgment for the 
defendant as in cases of nonsuit; and if a 
defendant shall fail to comply with such or- 
der to produce books or writings, it shall 
be lawful for the courts respectively, on mo- 
tion as aforesaid, to give judgment against 
him or her by default. "^ 

The restriction of tliis proceeding to "cases 
and under circumsiances where they [the 
parties] might be compelled to produce the 
same [books or writings] by the ordinary 
rules of proceeding in chancery," shows the 
wisdom of the congress of 1789. The court 
of chancery had for generations been weigh- 
ing and balancing the rules to be observed in 
granting discovery on bills filed for that pur- 
pose, in the endeavor to fix upon such as 
would best secure the ends of justice. To 
go beyond the point to which that court had 
gone may well have been thought hazard- 
ous. Now it is elementary knowledge that 
one cardinal rule of tBe court of chancery is 
never to decree a discovery which might 
tend to convict the party of a crime, or to 
forfeit his property, s And any compulsory 
discovery by extorting the party's oath, or 
compelling the production of his private 
books and papers, to convict him of crime, 
or to forfeit his property, is contrary to the 
principles of a free government It is ab- 
horrent to the instincts of an Englishman; 
it is abhorrent to the instincts of an Ameri- 
can. It may suit the purposes of despotic 
power, but it cannot abide the pure atmos- 
phere of political liberty and personal free- 
dom. 

It is proper to observe that when the ob- 
jectionable features ot the acts of 1863 and 
1867 were brought to the attention of con- 
gress it passed an act lo obviate them. By 
the act of February 25, 1868. (15 St. 37,) enti- 
tled "An act for the protection in certain 
cases of persons making disclosures as par- 
ties, or testifying as witnesses," the sub- 
stance of which is incorporated in section 860 

7 Sixty-two years later a similar act was pass- 
ed in England, viz.. the act of 14 & 15 Vict. c. 
99, § 6. See Poll. Prod. Doc. 5. 

8 See Poll. Prod. Doc. 27; 77 Law Lib. 



190 CIVIL RIGHTS AND THEIR PROTECTION BY THE CONSTITUTIONS. 



of the Revised Statutes, it was euacted "that 
no answer or other pleading of any party, 
and no discovery, or evidence obtained by 
means of any judicial proceeding from any 
party or witness in this or any foreijjn coun- 
try, shall be given in evidence, or in any 
manner used against such party or Avitness, 
or his property or estate, in any court of the 
T'nited States, or in any proceeding by or 
before any officer of the United States, in 
respect to any crime, or for the enforcement 
of any penalty or forfeiture by reason of 
any act or omission of such party or wit- 
ness." This act abrogated and repealed the 
most objectionable part of the act of 18(;7, 
(which was then in force.) and deprived the 
government officers of the convenient meth- 
od afforded by it for getting evidence in 
suits of forfeiture; and this is proliably the 
reason why the fifth section of the act of 
1874 was afterwards passed. No doubt it 
was supposed that in this new form, couch- 
ed as it was in almost the language of the 
fifteenth section of the old judiciary act, 
except leaving out the restriction to cases 
in whicli the court of chancery would decree 
a discovery, it would lie free from constitu- 
tional objection. Btit Ave think it has been 
made to appear that this result has not been 
attained; and that the law. though very 
speciously worded, is still obnoxioiis to the 
prohibition of the fourth amendment of the 
constitution, as Avell as of the fifth. 

It has been thought by some respectable 
members of the profession that the two acts, 
that of 18()8 and that of 1874. as being in 
pari materia, might be construed together 
so as to restrict the operation of the latter 
to cases other than those of forfeiture, and 
that such a construction of the two acts 
would obviate the necessit.v of declaring the 
act of 1874 unconstitutional. But as the act 
of 1874 was intended as a revisory act on 
the subject of revenue frauds and prosecu- 
tions therefor, and as it expi'essly repeals 
the second section of the act of 18(57, but 
does not repeal the act of 18(i8. and express- 
ly excepts criminal suits and proceedings, 
and does not except suits for penalties and 
forfeitures, it would hardly be admissible 
to consider the act of 1808 as having any in- 
rtuence over the construction of the act of 
1874. For the purposes of this discussion we 
must regard the fifth section of the latter 
act as independent of the act of 18()8. Ke- 
A-erting, then, to the peculiar phraseology of 
this act, and to the information in the prc'S- 
ent case. Avhich is founded on it, Ave have to 
deal witli an act Avhich expressly excludes 
criminal proceedings from its operation, 
(though embi'acing ciAil suits for penalties 
and forfeitures,) and with an information 
not technically a criminal proceeding, and 
neither, therefore, within the literal terms 
of the fifth amendment to the constitution 
any more than it is Avithin the literal terms 
of the fourth Does this relieve the pro- 



ceedings or the laAV from being obnoxious to 
the prohibitions of either? We think not; 
we think they are within the spirit of both. 
We have already noticed the intimate re- 
lation betAveen the tAvo amendments. They 
throw great light on each otlier. For the 
"unreasonable searches and seizures" con- 
demned In the fourth amendment are almost 
alAvays made for the purpose of compelling 
a man to give evidence against himself, 
AA'hich in criminal ca.ses is condemned in the 
fifth amendment; and compelling a man "in 
a criminal case to be a Avitness against liim- 
self," Avhich is condemned in the fifth amend- 
ment, throAVS light on the question as to 
Avhat is an "unrea tenable search and sei- 
zure" Avithiu the meaning of the fourth 
amendment. And Ave have been unable to 
perceive that the seizure of a man's private 
books and papers to be used in evidence 
against him is substantially different from 
compelling him to be a AAitness against him- 
self. We think it is within the clear intent 
and meaning of those terms. We are also 
clearly of opinion that proceedings instituted 
for the purjiose of declaring the forfeiture 
of a man's property by reason of oft'eiises 
committed by him. though they may be civil 
in form, are in their nature criminal. In 
this A'ei'y case the ground of forfeiture, as 
declared in the tAvelfth section of the act of 
1874, on which the information is based, con- 
sists of certain acts of fraud committed 
against the public revenue in relation to im- 
ported merchandise. Avhich are made criminal 
by the statute; and it is declared, that the 
offender shall be fined not exceeding .i;.").(J(K). 
nor less than ij^oO, or be imprisoned not ex- 
ceeding tAvo j'ears, or both; and in addition 
to such fine such merchandise shall be for- 
feited. These are the penalties afiixed to the 
criminal acts, the forfeiture sought bj- this 
suit being one of them. If an indictment 
luul been presented against the claimants, up- 
on conviction the forfeiture of the goods 
could liaA'e been included in the judgment. If 
the government prosecutor elects to AvaiA'e an 
indictment, and to file a civil information 
against the claimants.— that is, civil in form, 
— can he by this deA'ice take from the pro- 
ceeding its criminal aspect and deprive the 
claimants of their immunities as citizens, and 
extort from them a production of their pri- 
A-afe papers, or. as an alternative, a confes- 
sion of guilt"? This cannot be. The informa- 
tion, though technically a civil proceeding, is 
in substance and effect a criminal one. As 
shoAviug the close relation between the civil 
and criminal proceedings on the same stat- 
ute in such cases we may refer to the 
recent case of Coffey v. T^^. S., 116 U. S. 
427. Sup Ct 482, in Avliich we decided 
that an acquittal on a crimi lal information 
AA-as a good plea in bar +o a civil informa- 
tion for the forfeiture of goods, arising upon 
the same acts. As. thei'efore. suits for pen- 
alties and forfeitures, Incurred by the com- 



SEARCHES AND SEIZURES. 



191 



missiou of offenses against the law. are of 
this quasi criminal nature, we think that 
they are within the reason of criminal pro- 
ceedings for all the purposes of the fourth 
amendment of the constitution, and of that 
portion of the fifth amendment which de- 
clares that no person shall be compelled in 
any criminal case to be a witness against 
himself; and we are further of opinion that 
a compulsory production of the private boolis 
and papers of the owner of goods sought to 
be forfeited in such a suit is compelling him 
to be a witness against himself, within the 
meaning of the fifth amendment to the con- 
stitution, and is the equivalent of a search 
and seizure — and an unreasonable search and 
seizure — within the meaning of the fourth 
amendment. Though the proceeding in ques- 
tion is divested of many of the aggravating 
incidents of actual search and seizure, yet, as 
before said, it contains their substance and 
essence, and effects their substantial purix)se. 
It maj' be that it is the obnoxious thing in 
its mildest and least repulsive form; but il- 
legitimate and unconstitutional practices get 
their first footing in that way, nameljs by si- 
lent approaches and slight deviations from 
legal modes of procedure. This can only be 
obviated by adhering to the rule that con- 
stitutional provisions for the security of per- 
son and property should be liberally constru- 
ed. A close and literal construction deprives 
them of half their efficacy, and leads to grad- 
ual depreciation of the right, as if it con- 
sisted more in sound than in substance. It is 
the duty of courts to be watchful for the con- 
stitutional rights of the citizen, and against 
any stealthy encroachments thereon. Their 
motto should be obsta principiis. We have no 
doubt that the legislative boay is actuated by 
the same motives; but the vast accumula- 
tion of public business brought before it 
sometimes prevents it, on a first presentation, 
from noticing objections which become de- 
A^eloped by time and the practical application 
of the objectionable law. 

There have been several decisions in the 
circuit and district courts sustaining the con- 
stitutionality of the law under consideration, 
as well as the prior laws of 18(>3 and 1SG7. 
The principal of these are Stockwell v. U. 
S.. 3 Cliff". 284, Fed. Cas. No. 13,4GG; In re 
Piatt, 7 Ben. 2(Jl, Fed. Cas. No. 11.212; U. S. 
V. Hughes, 12 Blatchf. .'.53. Fed. Cas. No. 
15,417; U. S. V. Mason, G Biss. 350, Fed. Cas. 
No. 15,735; Sam v. Three Tons of Coal, G 
Biss. 379, Fed. Cas. No. lG,51o; Same v. Dis- 
tillery No. 28, G Biss. 483, Fed. Cas. No. 14,- 
itGG. The first and leading case was that of 
Stockwell V. V. S., decided by Mr. Justice 
Clifford and Judge Shepley, the law under 
discussion being that of 18G7. Justice Clif- 
ford delivered the opinion, and relied princi- 
pally upon the collection statutes, which au- 
thorized the seizure of goods liable to duty, 
as being a contemporaneous exposition of the 
amendments, and as furnishing precedents of 



analogous laws to that complained of. As we 
have already considered the bearing of these 
laws on the subject of discussion, it is un- 
necessary to say anything more in relation to 
them. The learned justice seemed to think 
that the power to institute such searches and 
seizures as the act of 1867 authorized, was 
necessary to the efficient collection of the 
revenue, and that no greater objection can be 
taken to a warrant to search for books, in- 
voices, and other papers appertaining to an il- 
legal importation than to one authorizing a 
search for the imported goods; and he con- 
cluded that, guarded as the new provision is, 
it is scarcely possible that the citizen can 
have an7 just ground of complaint. It seems 
to us that these considerations fail to meet 
the most serious objections to the validity of 
the law. The other cases followed that of 
Stockwell V. U. S. as a precedent, with more 
or less independent discussion of the subject. 
The Ca.se of Piatt and Boyd, decided in the 
district court for the Southern district of 
New York, was also under the act of 1867, 
and the opinion in thf^t case is quite an elab- 
orate one; but, of course, the previous de- 
cision of the circuit court in the Stockwell 
Case had a governing infiuence on the district 
court. The other cases referred to were un- 
der the fifth section of the a 't of 1874. The 
case of U. S. v. Hughes came up, first, before 
Judge Blatchf ord in the district court in 1875. 
S Ben. 29, Fed. Cas. No. 15,416. It was an 
action of debt to recover a penalty under the 
customs act, and the judge held that the fifth 
section of the act of 1874, in its application 
to suits for penalties incuired before the pas- 
sage of the act, was an ex post facto law, and 
therefore, as to them, was unconstitutional 
and void; but he granted an order pro forma 
to produce the books and papers required, in 
order that the objection might come up on 
the offer to give them in evidence. They were 
produced in obedience to the order, and offer- 
ed in evidence by the district attornej', but 
were not admitted. The district attorney 
then served upon one of the defendants a 
subpoena duces tecum, requiring him to pro- 
duce the books and papers; and this being 
declined, he moved for an order to compel 
him to produce them; but the court refused 
to make such oider. The books and papers 
referred to had been se zed under the act of 
1SG7, but were returned to the defendants 
under a stipulation to produce them on the 
trial. The defendants relied, not only on the 
unconstitutionality of the laws, but on the 
act of ISGS, before referred to, which prohib- 
ited evidence obtained from a party by a ju- 
dicial proceeding from being used against him 
in any prosecution for a crime, penalty, or 
forfeiture. Judgment being rendered for the 
defendant, the case was carried tn the circuit 
court by writ of error, and, in tliat court, 
Mr. Justice Hum held that the act of 18(38 
referred only to personal testimony or discov- 
ery obtained from a party or witness, and not 



1^2 CIVIL RIGHTS AND THEIR PROTECTIOX BY THE COXSTITUTIOXS. 



to books or papers wrested from him; aud, 
as to the constitutionality of the law, he 
merely referi'ed to the Case of Stockwell, and 
the judgment of the district court was revers- 
ed. In view of what has been already said, 
■we think it unnecessary to make any special 
observatioi^s on this decision. In U. S. v. Ma- 
sou, .ludge Blodgett took the distinction that, 
in proceedings in rem for a forfeiture, the 
parties are not required by a proceeding im- 
der the act of 1S74 to testify or furnish evi- 
dence against themselves, because the suit is 
not against them, but against the property. 
But where the owner of the property has 
been admitted as a claimant, we cannot see 
the force ot this distinction; nor can we as- 
sent to the proposition that the proceeding 
is not, in effect, a proceeding against the 
owner of the property, as well as against the 
goods; for it is his breach of the laws which 
has tp be proved to establish the forfeiture, 
and it is his property which is sought to be 
forfeited, and to require such an owner to 
produce his private books and papers in order 
to prove his breach of the laws, and thus to 
establish the forfeiture of his property, is sure- 
ly compelling him to furnish evidence against 
himself: In the words of a great judge, "Goods, 
as goods, cannot offend, forfeit, unlade, pay 
duties, or the like, but men whose goods 
they are." ^ 

The only remaining case decided in the 
United States courts, to which we shall ad- 
vert, is that of U. S. v. Distillery No. 28. In 
that case .ludge Gresham adds to the view of 
Judge Blodgett, in U. S. v. Mason, the fur- 
ther suggestion, that as in a proceeding in 
rem the owner is not a party, he might be 

9 Vaughan. C. .T., in Sheppard v. Gosnold, 
Vaughan. 159, 172; approved by Parker, C. B., 
in Mitchell v. Torup, Parker, 227, 230. 



compelled Dy a subpoena duces tecum to pro- 
duce his books aud papers like any other wit- 
ness; and that the warrant or notice for 
search aud seizure, under the act of 1874, does 
nothing more. But we cannot say that we 
are any better satisfied with this supposed 
solution of the difficulty. The assumption 
that the owner may be cited as a Avituess in 
a proceeding to forfeit his property seems to 
us gi'atuitors. It begs the question at is- 
sue. A witness, as well as a party, is pro- 
tected by the law from being compelled to 
give evidence that tends to criminate him, or 
to subject his property to forfeiture. Queen 
V. Newel, Parker, 209; 1 Greenl. Ev. §§ 4.51- 
4.53. But, as before said, although the owner 
of goods, sought to be forfeited by a proceed- 
ing in rem, is not the nominal party, he is, 
nevertheless, the substantial party to the 
suit; he certainly is so, after making claim 
and defense; and, in a case like the present, 
he is entitled to all the privileges which ap- 
pertain to a person who is prosecuted for a 
forfeiture of his property by reason of com- 
mitting a criminal otfeuse. 

We find nothing in the decisions to change 
our views in relation to the principal ques- 
tion at issue. We think that the notice to 
produce the invoice in this case, the order by 
virtue of which it was issued, and the law 
which authorized the order, were unconsti- 
tutional and void, and that the inspection by 
the district attorney of said invoice, when 
produced in obedience to said notice, and its 
admission in evidence by the court, were er- 
roneous and unconstitutional proceedings. 
We are of opinion, therefore, that the judg- 
ment of the circuit court should be reversed, 
and the cause remanded, with directions to 
award a new trial; aud it is so ordered. 



POLITICAL AXD PUBLIC RIGHTS. 



193 



ELK V. WILKINS.i 

(5 Sup, Ct. 41, 112 U. S. 94.) 

Supreme Court of the United States. Nov. 3, 
1884. 

In error to the circuit court of the United 
States for the district of Nebraslia. 

A. J. Poppleton and J. L. Webster, for 
plaintiff; in error. G. M. Lamberton, for de- 
fendant in error. 

GRAY, J. This is an action brought by an 
Indian, in the circuit court of the United 
States for the district of Nebrasl^a, against 
the registrar of one of the wards of the city 
of Omaha, for refusing to register him as a 
qualified voter therein. The petition was as 
follows: "John Elk, plaintiff, complains of 
Charles Wilkins, defendant, and avei-s that 
the matter in dispute herein exceeds the sum 
of five hundred dollars, to-wit, the sum of 
six thousand dollars, and that the matter in 
dispute herein arises under the constitution 
and laws of the United States; and, for 
cause of action against the defendant, avers 
that he, the plaintiff, is an Indian, and was 
born within the United States; that more 
than one year prior to the grievances hce- 
inafter complained of he had severed his tri- 
bal relation to the Indian tribes, and had 
fully and completely surrendered himself to 
the jurisdiction of the United States, and 
still so continues subject to the jurisdiction 
of the United States; and avers that, under 
and by virtue of the fourteenth amendment 
to the constitution of the United States, he 
is a citizen of the United States, and entitled 
to the right and privilege of citizens of the 
United States. That on the sixth day of 
April, 1880, there was held in the city of 
Omaha (a city of the first class, incorporated 
under the general laws of the state of Ne- 
braska, providing for the incorporation of cit- 
ies of the first class) a general election for 
the election of members of the city council 
and other officers for said city. That the 
defendant, Charles Wilkins, held the office 
of and acted as registrar in the Fifth ward 
of said city, and that as such registrar it 
was the duty of such defendant to register 
the names of all persons entitled to exercise 
the elective franchise in said ward of said 
city at said general election. That this plain- 
tiff was a citizen of and had been a bona 
fide resident of the state of Nebraska for 
more than six months prior to said sixth day 
of April, 1880, and had been a bona fide res- 
ident of Douglas county, wherein the city of 
Omaha is situate, for more than forty days, 
and in the Fifth ward of said city more than 
ten days prior to the said sixth day of April, 
and was such citizen and resident at the 
time of said election, and at the time of his 
attempted registration, as hereinafter set 

1 Dissentiog opinion of Mr. Justice Harlan 
omitted. 

SMITH.CONST.LAW— 13 



forth, ar"' was in evr-y way rualified, under 
the laws of the state of Nebraska and of the 
city of Omaha, to be registered as a voter, 
and to cast a vote at said election, and com- 
plied with the laws of the city and state in 
that behalf. That on or about the fifth day 
of April, 1880, and prior to said election, this 
plaintiff" presented himself to said Charles 
Wilkins, as such registrar, at his office, for 
the purpose of having his name registered a^ 
a qualified voter, as provided by law, and 
complied with all the provisions of the stat- 
utes in that regard, and claimed that, under 
the fourteenth and fifteenth amendments to 
the constitution of the United States, he was 
a citizen of the United States, and was en- 
titled to exercise the elective franchise, re- 
gardless of his race and color; and that said 
Wilkins, designedly, corruptly, willfully, and 
maliciously, did then and there refuse to regis- 
ter this plaintiff, for the sole reason that the 
plaintiff" was an Indian, and therefore not a 
citizen of the United States, and not, therefore, 
entitled to vote, and on account of his i*ace 
and color, and with the willful, malicious, 
corrupt, and unlawful design to deprive this 
plaintiff of his right to vote at said election, 
and of his rights, and all other Indians of 
their rights, under said fourteenth and fif- 
teenth amendments to the constitution of the 
United States, on account of his and their 
race and color. That on the sixth uay of 
April this plaintiff presented himself at the 
place of voting in said ward, and presented 
a ballot, and requested the right to vote, 
where said Wilkins, who was then acting as 
one of the judges of said election in said 
ward, in further carrying out his willful and 
malicious designs as aforesaid, aeclared to 
the plaintiff and to the other election offi- 
cers that the plaintiff" was an Indian, and 
not a citizen, and not entitled to vote, and 
said judges and clerks of election refused to 
receive the vote of the plaintiff, for that he 
was not registered as required by law. 
Plaintiff avers the fact to be that by reason 
of said willful, unlawful, corrupt, and mali- 
cious refusal of said defendant to register 
this plaintiff, as provided by law, he was de- 
prived of his right to vote at said election, 
to his damage in the sum of $0,000. AVhere- 
fore, plaintiff prays judgment against de- 
fendant for $6,000, his damages, with costs 
of suit." 

The defendant filed a general demurrer 
for the following causes: (1) That the peti- 
tion did not state facts sufficient to consti- 
tute a cause of action; (2) that the court 
had no jurisdiction of the person of the de- 
fendant; (3) that the court had no jurisdic- 
tion of the subject of the action. The de- 
murrer was argued before Judge McCrary 
and Judge Dundy, and sustained; and, the 
plaintiff electing to t--tand by his petition, 
judgment was rendei'ed for the defendant, 
dismissing the petition, with costs. The 
plaintiff sued out this writ of error. 

By the constitution of the state of Nebras- 



I'M 



roj.lTICAL AM) IMJliLIC in(JIIT8. 



ka, art. 7. S 1, "ovcry male pci'soii of the am* 
of ,t\vc'ut.v-oue years or upwards, hclougin;, 
to either of the following: chisses, who shall 
have resided in the state six months, and in 
the count.v. precinct, or wai-d for the tei-ni 
jirovided by law, shall be an elector: First, 
citizens of the United States; sec<ind, pei'sons 
of foreign birth who shall have declared 
their intention to become citizens, conform- 
ably to the laws of the United States on the 
subject of naturalization, at least thirty days 
prior to an election." By the statutes of Ne- 
braska, every male person of the age of '21 
yeai-s or upward. Ix^longing to either of the 
two classes so defined in the constitution of 
the state, who shall have resided in the state 
(i months, in the coimty 40 days, and in the 
precinct, township, or ward 10 days, shall be 
an elector; the qualifications of electors in 
the several wards of cities of the tirst class 
(of which Omaha is one) shall be the same 
as in precincts; it is the duty of the regis- 
trar to enter in the register of qualified vot- 
ers the name of every person who applies to 
him to be registered, and sjitisties him that 
he is (lualihed to vote under the provisions 
of the election laws of the state; and at all 
municipal, as well as county or state elec- 
tions, the judges of election are required to 
check the name, and receive and deposit the 
ballot, of any person whose name appears on 
the register. Comp. St. Neb. 1881, c. 2<j. § 
:^■, c. 13, S 14; c. 7(J. §S (5. 13, 19. 

The plaintiff, in .support of his action, re- 
lies on the first clause of the first .section of 
the fourteenth article of amendment of the 
constitution of the United States, by which 
"all persons born or naturalized in the Unit- 
ed Strifes, and subject to the jurisdiction 
thereof, are citizens of the United States 
and of the state wherein they reside;" and 
on the fifteen article of amendment, which 
provides that "the right of citizens of the 
United States to vote shall not be denied or 
abridged by the United States or by any 
state on account of race, color, or previous 
condition of servitude." This being a suit 
at common law in which the matter in dis- 
pute exceeds ^~>00, arising under the con- 
stitution of the T'nited States, the circuit 
court had jurisdiction of it under the act of 
March 3, 1875, c. 137. § 1, even if the parties 
were citizens of the same state. 18 Stat. 
470; Ames v. Kansas, 111 \L S. 449. 4 Sup. 
Ct. 437. The judgment of that court, dis- 
missing the action with costs, mu.st have pro- 
ceeded upon the merits, for if the dismissal 
had been for want of jurisdiction, no costs 
could have been awarded. ]Mayor v. Cooper, 
6 AVall. 247; Mansfield, C. <fe L. M. Ky. v. 
Swan, 111 U. S. 379, 4 Sup. Ct. 510. And 
the only point argued by the defendant in 
this court is whether the petition sets forth 
facts enough to constitute a cause of action. 
The decision of this point, as both parties as- 
sume in their briefs, depends upon the ques- 
tion whether the legal conclusion, that un- 
der and by virtue of the fourteenth amend- 



ment of the constitution the plaiuliff is a 
citizen of the United States, is supported by 
the facts alleged in the petition and admit- 
ted by the demurrer, to-wit: The plaintiff 
is an Indian, and was born in the United 
States, and has severe<l his tribal relation to 
the Indian tribes, and fully and completely 
surrendered himself to the jurisdiction of the 
United States, and still continues to be sub- 
ject to the jurisdiction of the United States, 
and is a bona fide resident of the state of 
\(>braska and city of Omaha. The petition, 
while it does not show of what Indian tribe 
the plaintiff was a member, yet. by the al- 
legations that he "is an Indian, and was born 
within the United States." and that "he had 
severed his tribal relations to the Indian 
tribes." clearly implies that he was born a 
member of one of the Indian tribes within 
the limits of the United States which still 
exists and is recognized as a tribe by the 
government of the I'nited States. Though 
the plaintiff alleges that he "had fully and 
completely surrendered himself to the juris- 
diction of the United States." he does not 
allege that the Ignited States accepted his 
surrender, or that he has ever been natui-al- 
ized, or taxed, or in a.iy way recognized or 
treated a.s a citizen by the state or by the 
United States. Nor is it contended by his 
coun.sel that there is any statute or treaty 
that makes him a citizen. 

The question then is. whether an Indian, 
born a member of one of the Indian tribes 
within the United States, is, merely by rea- 
son of his birth within the United States, 
and of his afterwards voluntarily separating 
himself from his tribe and taking up his res- 
idence among white citizens, a citizen of the 
United States, within the meaning of the 
first section of the fourteenth amendment of 
the constitution. Under the constitution of 
the I'niti'd States, as originally established, 
"Indians not taxed" were excluded from the 
pei'sons according to whose numbers repre- 
sentatives and direct taxes \vere apportion- 
ed among the several states; and congress 
had and exercised the power to regulate 
commerce with the Indian tribes, and the 
members thereof, whether within or without 
the boundaries of one of the states of the 
Union. The Indian tribes. l)eing within the 
teiTitorial limits of the Ignited States, were 
not. strictly speaking, foreign states; but 
they were alien nations, distinct political 
communities, with whom tlie United States 
might and habitually did deal, as they 
thought tit, either through treaties made by 
the president and senate, or through acts of 
congress in the ordinary forms of legisla- 
tion. The members of those tribes owed im- 
mediate allegiance to their several tribes, 
and were not part of the people of the Unit- 
ed States. They were in a dependent condi- 
tion, a state of pupilage, resembling that of 
a ward to his guardian. Indians and their 
property, exempt from taxation by treaty or 
statute of the United States, could not be 



CITIZENSHIP. 



195 



taxed by any state. General acts of con- 
gress did not apply to Indians, unless so ex- 
pressed as to clearly manifest an intention 
to include them. Const, art. 1, §§2, 8; art. 
2, § 2; Cherokee Nation v. Geox'gia, 5 Pet. 
1; Worcester v. Georgia, 6 Pet. 515; U. S. 
V. Rogers, 4 How. 567; U. S. v. HoUidaj^ 3 
WsiU. 407; Case of the Kansas Indians, 5 
Wall. 737; Case of the New York Indians, 
Id. 761; Case of the Chei'okee Tobacco, 11 
Wall. 616; U. S. v. Whisky, 93 U. S. 188; 
Pennock v. Commissioners, 103 U. S. 44; 
Crow Dog's Case. 109 U. S. 556. 3 Sup. Ct. 
396; Goodell v. Jackson, 20 Johns. 693; Hast- 
ings V. Farmer, 4 N. Y. 293. 

The alien and dependent condition of the 
members of the Indian tribes could not be 
put off at their own will without the action 
or assent of the United States. They were 
never deemed citizens of the United States, 
except under explicit provisions of treaty or 
statute to that effect, either declaring a cer- 
tain tribe, or such membei-s of it as chose 
to remain behind on the removal of the tribe 
westward, to be citizens, or authorizing in- 
dividuals of particular tribes to become citi- 
zens on application to a court of the United 
States for naturalization and satisfactory 
proof of fitness for civilized life; for ex- 
amples of which see treaties in 1817 and 
1835 with the Cherokees. and in 1820, 1825, 
and 1830 with the Choctaws, (7 Stat. 159. 
211. 236, 335, 483. 488; Wilson v. Wall, 6 
Wall. 83; Opinion of Attorney General Ta- 
ney, 2 Op. Atty. Gen. 462;) in 1855 with the 
Wyandotts, (10 Stat. 1159; Karrahoo v. Ad- 
ams. 1 Dill. 344, 34<3, Fed. Cas. No. 7,614; 
Gray v. Coffman, 3 Dill. 393, Fed. Cas. No. 
5,714; Hicks v. Butrick, 3 Dill. 413, Fed. 
Cas. No. 6,458;) in 1861 and in March, 1866, 
Avith the Pottawatomies. (12 Stat. 1192; 14 
Stat, 763;) in 1862 with the Ottawas, (12 
Stat. 1237;) and the Kickapoos, (13 Stat. 
624;) and acts of congress of March 3. 1839, 
c. 83. § 7. concerning the Brothertown In- 
dians: and of March 3, 1843, c. 101, § 7, Au- 
gust 6. 1846, c. 88, and Mai-cfi 3, 1865, c. 127, 
§ 4, concerning the Stockbridge Indians, (5 
Stat. 351, 647; 9 Stat. .55; 13 Stat. 562.) See, 
also, treaties with the Stockbridge Indians 
in 1848 and 1856. (9 Stat. 955; 11 Stat. 667; 
7 Op. Attys. Gen. 746.) 

Chief Justice Taney, in the passage cited 
for the plaintiff from his opinion in Scott v. 
Sandford. 19 How. 393, 404. did not affirm or 
imply that either the Indian tribes, or in- 
dividual members of those tribes, had the 
right, beyond other foreigners, to become 
citizens of their own will, without being nat- 
uralized by the United States. His words 
were: "They" (the Indian tribes) "may with- 
out doubt, like the subjects of any foreign 
government, be naturalized by the authority 
of congress, and become citizens of a state, 
and of the United States; and if an individ- 
ual should leave his nation or tribe, and take 
up his abode among the white population, 
he would be entitled to all the rights and 



privileges Avhich w'ould belong to an emi- 
grant from any other foreign people." But 
an emigrant from any foreign state cannot 
become a citizen of the United States with- 
out a formal renunciation of his old alle- 
giance, and an acceptance by the United 
States of that renunciation through such 
form of naturalization as may be required 
by law. 

The distinction between citizenship by 
birth and citizenship by naturalization is 
cleai'ly marked in the provisions of the con- 
stitution, by which "no person, except a nat- 
ural-born citizen, or a citizen of the United 
States at flie time of the adoption of this 
constitution, shall be eligible to the office of 
president;" and "the congress shall have 
power to establish an uniform I'ule of nat- 
uralization." Const, art. 2, § 1; art. 1, § 8. 
By the thirteenth amendment of the con- 
stitution slavery was prohibited. The main 
object of the opening sentence of the four- 
teenth amendment was to settle the ques- 
tion, upon which tliere had been a difference 
of opinion throughout the country and in this 
court, as to the citizenship of free negroes 
(Scott V. Sandford. 19 How. 393;) and to put 
it beyond doubt that all persons, white or 
black, and whether formerly slaves or not, 
born or naturalized iu the United States, and 
OAving no allegiance to any alien powei', 
should be citizens of the United States and 
of the state in which they reside. Slaughter- 
House Cases, 16 Wall. 36, 73; Strauder v. 
West Virginia, 100 U. S. 303, 306. 

This section contemplates two sources of 
citizenship, and two sources only: birth and 
naturalization. The persons declared to be 
citizens are "all persons born or naturalized 
in the United States, and subject to the juris- 
diction thereof." The evident meaning of 
these last words is, not merely subject in 
some respect or degree to the jurisdiction of 
the United States, but completely subject to 
their political jurisdiction, and owing them 
direct and immediate allegiance. And the 
words relate to the time of birth in the one 
case, as they do to the time of naturalization 
in the other. Persons not thus subject to the ju- 
risdiction of the United States at the time of 
birth cannot become so afterwards, except by 
being naturalized, either indiAndually, as by 
proceedings imder the naturalization acts; or 
collectively, as by the force of a treaty by 
which foreign territory is acquired. Indians 
born within the territorial limits of the Unit- 
ed States, members of, and owing immediate 
allegiance to, one of the Indian tribes, (an 
alien though dependent power,) although in 
a geographical sense born in the United 
States, are no more "born in the United 
States and subject to the jurisdiction there- 
of," within the meaning of the first section of 
the fourteenth amendment, than the children 
of subjects of any foreign government born 
within the domain of that government, or the 
children born within the United States, of am- 
bassadoi-s or other public ministers of foreign 



196 



POLITICAL AND PUBLIC RIGHTS. 



nations. Tliis view is confirmed by the second 
section of tbe t'ourteeutb amendment, wliicb 
provides tliat '"representatives sliall be ap- 
portioned among tlie several states according 
to tlieir respect've numbers, counting the 
wliole number of persons in each state, ex- 
cluding Indians not taxed." Slavery having 
been abolished, and the persons formerly 
held as slaves made citizens, this clause fix- 
ing the apportioument of representiitives has 
abrogated so much of the corresponding 
clause of the original constitution as counted 
only three-fifths of such persons. But In- 
dians not taxed are still excluded from the 
count, for the re-ison that they are not citi- 
zens. Their absolute exclusion from the 
basis of representation, in which all other 
persons are now included, is wholly incon- 
sistent with their being considered citizens. 
So the further provision of the second section 
for a proportionate reduction of the basis of 
the representation of any state in which the 
right to vote for presidential electors, repre- 
sentatives in congress, or executive or ju- 
dicial officers or members of the legislature of 
a state, is denied, except for participation in 
rebellion or other crime, to "any of the male 
inhabitants of such state, being twenty-one 
years of age and citizens of the United 
States," cannot apply to a denial of the elect- 
ive franchise to Indians not taxed, who 
form no part of the people entitled to repre- 
sentation. 

It is also worthy of remark that the lan- 
guage used, about the same time, by the very 
congress which framed the fourteenth amend- 
ment, in the first section of the civil rights 
act ct April 9, 1SG6, declaring who shall be 
citizens of the United States, is "all persons 
born in the United States, and not subject to 
any foreign power, excluding Indians not 
taxed." 14 Stat. 27; Rev. St. § l'J92. Such 
Indians, then, not being citizens by birth, can 
only become citizens in the second way men- 
tioned in the fourteenth amendment, by be- 
ing "naturalized in the United States," by or 
under some treaty or statute. The action of 
the political departments of the government, 
not only after the proposal of the amend- 
ment by congress to the states in June. 1866, 
but since the proclalnation in .luly, 1868, of 
its ratification by the requisite number of 
states, accords with this construction. While 
the amendment was pending before the legis- 
latures of the several states, treaties contain- 
ing provisions for the naturalization of mem- 
bers of Indian tribes as citizens of the United 
States were made on July 4, 1866, with the 
Delawares, in 1867 with various tribes in 
Kansas, and with the Pottawatomies, and in 
April, 1868, with the Sioux. 14 Stat. 794, 
796; 15 Stat. 513, 532, 533, 637. 

The treaty of 1867 with the Kansas In- 
dians strikingly illustrates the principle that 
no one can become a citizen of a nation with- 
out its consent, and directly contradicts the 
supposition that a member of an Indian tribe 
can at will be alternately a citizen of the 



United States and a member of tbe tribe. 
That treaty not only provided for the natu- 
ralization of members of the Ottawa, Miami, 
Peoria, and other tribes, and their families, 
upon their making declaration, before the 
district court of the United States, of their 
intention to become citizens, (15 Stat. 517, 
520, 521,) but, after reciting that some of 
the Wyandotts, who had become citizens un- 
der the treaty ot 18.55, were "unfitted for the 
responsibilities of citizenship," and enacting 
that a registei- of the whole people of this 
tribe, resident in Kansas or elsewhere, should 
be taken, under tbe direction of the secretary 
of the interior, showing the names of "all 
who declare their desire to be and remain 
Indians and in a tribal condition," and of in- 
competents and orphans as described in tbe 
treaty of 1855, and that such persons, and 
those only, should thereafter constitute tbe 
tribe, it provided that "no one who has here- 
tofore consented to become a citizen, nor the 
wife or children of any such person, shall be 
allowed to become members of the tribe, ex- 
cept by tbe free consent of the tribe after its 
new organization, and unless the agent shall 
certify that such party is, through poverty 
or incapacity, unfit to continue in the exer- 
cise of tbe responsibilitips of citizenship of the 
Unitea States, and likely to become a public 
charge." 15 Stat. 514, 516. 

Since the ratification of tbe fourteenth 
amendment, congress has passed several acts 
for naturalizing Indians of certain tribes, 
which would have been superfluous if they 
were, or might become without any action of 
tbe government, citizens of tbe United States. 
By tbe act of July 15, 1870, c. 296, § 10, for 
instance, it was provided that if at any time 
thereafter any of tbe Winnebago Indians in 
tbe state of Minnesota should desire to be- 
come citizens of the United States, they 
should make application to the district court 
of the United States for tbe district of Minne- 
sota, and in open court make the same proof, 
and take tbe same oath of allegiance as is 
provided by law for tbe naturalization of 
aliens, and should also make proof, to the 
satisfaction of the court, that they were suffi- 
ciently intelligent and prudent to control their 
affairs and interests, that they bad adopted 
the habits of civilized life, and had for at 
least five years before been able to support 
themselves and their families; and thereup- 
on they should be declared by the court to be 
citizens of tbe United States, tbe declaration 
entered of record, and a certificate thereof 
given to tbe applicant; and tbe secretary of 
the interior, upon presentation of that cer- 
tificate, might issue to them patents in fee- 
simple, with power of alienation, of the lands 
already held by them in severally, and might 
cause to be paid to them their proportion of 
the money and eft'-^cts of the tribe held in 
trust under any treaty or law of tbe United 
States, and thereupon such persons should 
cease to be members of tbe tribe; and tbe 
lands so patented to them should be subject 



CITIZENS HIP. 



197 



to levy, taxation, and sale in like manner 
with the property of other citizens. 16 Stat. 
361. By the act of March 3, 1873, c. 332, § 
3, similar provision was made for the nat- 
uralization of any adult members of the 
Miami tribe in Kansas, and of their minor 
children. 17 Stat. 632. And the act of 
March 3, 1865, c. 127, before referred to, mak- 
ing corresponding provision for the natural- 
ization of any of the chiefs, warriors, or 
heads of families of the Stockbridge Indians, 
is re-enacted in section 2312 of the Revised 
Statutes. 

The act of January 25, 1871, c. 38, for the 
relief of the Stockbridge and Munsee Indians 
in the state of Wisconsin, provided that '"for 
the purpose of determining the persons who 
are members of said tribes, and the future 
relation of each to the government of the 
United States," two rolls should be prepar- 
ed under the direction of the commissioner of 
Indian affairs, signed by the sachem and 
councilors of the tribe, certified by the per- 
son selected by the commissioner to superin- 
tend the same, and returned to the commis- 
sioner; the one, to be denominated the cit- 
izen roll, of the names of all such persons of 
full age, and their families, "as signify their 
desire to separate their relations with said 
tribe and to become citizens of the United 
States," and the other to be denominated the 
Indian roll, of the names of all such "as de- 
sire to retain their tribal character and con- 
tinue under the care and guardianship of the 
United States;" and that those rolls, so made 
and returned, should be held as a full sur- 
render and reliuquis.hment, on the pari; of all 
those of the first class, of all claiius to be 
known or considered as members of the tribe, 
or to be interested in any provision made or 
to be made by the United States for its ben- 
efit, "and they and their descendants shall 
thenceforth be admitted to all the rights and 
privileges of citizens of the United States."' 
16 Stat. 406. 

The pension act exempts Indian claimants 
of pensions for service in the army or navy 
from the obligation to take the oath to sup- 
port the constitution of the United States. 
Act of March 3, 18'. 3, c. 234, § 28, (17 Stat. 
574; Rev. St. § 4721.) The recent statutes 
concerning homesteads are quite inconsist- 
ent with the theory that Indians do or can 
make themselves independent citizens by liv- 
ing apart from their tribe. The act of March 
3. 187.5, c. 131, § 15, allowed to "any Indian 
born in the United States, who is the head 
of a family, or who has arrived at tlie age 
of twenty-one years, and who has abandon- 
ed, or may hereafter abandon, his tribal rela- 
tions," the benefit of the homestead acts, but 
only upon condition of his "making satisfac- 
tory proof of such abandonment, under rules 
to be prescribed by the secretary of the in- 
terior;" and further provided that his title 
in the homestead should be absolutely in- 
alienable for five years from the date of the 
patent, and that he should be entitled to share 



in all annuities, tribal funds, lands, and other 
property, as if he had maintained his tribal 
relations. 18 Stat. 420. And the act of 
March 3, 1884, c 180, § 1, while it allows 
Indians "located on public lands" to "avail 
themselves of the homestead laws as fully, 
and to the same extent, as may now be done 
by citizens of the United States," provides 
that the form and the legal effect of the pat- 
ent shall be that the United States does and 
will hold the land for twenty-five years in 
trust for the Indian making the entry, and 
his widow and heirs, and will then convey 
it in fee to him or them 23 Stat. 96. The 
national legislation has tended more and 
more towards the education and civilization 
of the Indians, and fitting them to be cit- 
izens. But the question whether any Indian 
tribes, or any members thereof, have become 
so far advanced in civilization that they 
should be let out of the state of pupilage, 
and admitted to the privileges and responsi- 
bilities of citizenship, is a question to be de- 
cided by the nation whose wards they are 
and whose citizens they seek to become, and 
not by each Indian for himself. There is 
nothing in the statutes or decisions, refeiTed 
to by counsel, to control the conclusion to 
which we have been brought by a considera- 
tion of the language o.f the fourteenth amend- 
ment, and of the condition of the Indians at 
the time of its px'oposal and ratification. 

The act of July 27, 1868, c. 249, declaring 
the right of expatriation to be a natural and 
inherent right of all people, and reciting 
that "in the recognition of this principle this 
government has freely received emigrants 
from all nations, and invested them with 
the rights of citizensnip," while it affirms 
the right of every man to expatriate himself 
from one country, contains nothing to enable 
him to become a citizen of another without 
being naturalized under its authority. 15 
St. 223; Rev. St. § 1999. The provision of 
the act of congress of March 3, 1871, c. 120, 
that "hereafter no Indian nation or tribe 
within the territory of the United States 
shall be acknowledged or recognized as an 
independent nation, tribe, or power with 
whom the United States may contract by 
treaty," is coupled with a provision that the 
obligation of any treaty already lawfully 
made is not to be thereby invalidated or im- 
paired; and its utmost possible effect is to 
require the Indian tribes to be dealt with for 
the future through the legislative and not 
through the treaty-making power. 16 St. 
566; Rev. St. § 2079. 

In the case of U. S. v. Elm, 23 Int. Rev. 
Rec. 419, decided by Judge Wallace in the 
district court of the United States for the 
Northern district of New York, the Indian 
who was held to have a right to vote in 1876 
was born in the state of New York, one of 
the remnants of a tribe which had ceased to 
exist as a tribe in that state; and by a stat- 
ute of the state it had been enacted thjii 
I any native Indian might purchase, take, hold, 



l'J'8 



rOLITICAL AND PUHLIC RIGHTS. 



and convey lands, and. whenover he should 
have become a freeholder to the value of 
$100, should be liable to taxation, and to 
the civil .iurisdlction ot the courts, in the 
same manner and to the same extent as a 
citizen. N. Y St 1848 c. 87. The condi- 
tion of the tribe trom which he derived his 
orijjin, so far as any fragments of it re- 
mained within the state of New Yoi'k. re- 
sembled the condition of those Indian na- 
tions of which Mr. .Tusiice Johnson said in 
Fletcher v. Peck, tranth, 87, 140, tliat they 
■"have totally extinjjnislied their national tire, 
and submitted themselves to the laws of the 
states;" and which Mr. Justice McLean had 
in view when he oljsei ved in Worcester v. 
Oeorjria, G Pet. 51"), r)80, that in some of the 
old states "whei'e small remnants of tribes 
remain, surrounded b.v white population, and 
Avho, by their redtn ed numliers, had lost the 
power of self-government, the laws of th<> 
state have been extended over them, for the 
protection of tl)eir i)ersons and pi-operty." 
See, also, as to the condition of Indians in 
Massa<-husetts, remnants of tribes never rec- 
<>.irnized by the treaties or legislative or ex- 
«'cutive acts of tht United States as distinct 
political communities, Danzell v. Webquish, 
108 :Mas.s i:}:*,; Pells v. Welxiuish. 120 Mass. 
4(>0; Mass. St. 1862, c. 184; 1800, c. 4(!3. 

The pas.«ages cited as favorable to the 
plaintiff, from the opinions delivered in Ex 
parte Kenyon, .1 Dill. 885, ;>90. Fed. Cas. Xo. 
7,720, in Ex parte Tie} iiolds, 5 Dill. 304, 897. 
Fed. Cas. No. 11.710, and in U. S. v. Crook. 
5 Dill. 453, 404, Fed. Cas. No. 14,891, were 
obiter dicta. The Case of Re.vnolds was an 
indictment, in the circuit court of the T'nited 
States for the Westtrn district of Arkan.sas, 
for a murder in the Indian country, of which 
that coiut had .iurisdictiou if either the ac- 
cused or tli(> dead man was not an Indian, 
and was decided by Judge Parker in favor 
of the jurisdiction, upon the ground that 
l>oth were white men, and that, conceding 
the one to be an Indian by marriage, the 
other never was an Indian in an.v sense. 5 
Dill. 897. 404. Each of the other two eases 
was a v.rit of habeas corpus; and any per- 
son, Avhether a citizen or not. unlawfully re- 
strained of his libeity, is entitled to that 
writ. Case of the Hottentot Venus, 18 East, 
195; Case of Dos Santos 2 Brock. 498, Fed. 
Cas. No. 4,010, In re Kaine, 14 How. 103. 
In Ken.von's Case Judge Parker held that 
the court in which The pi'isoner had been 
convicted had no jurisdiction of the subject- 
matter, because the place of the commission 
of the act was beyond the territorial limits 
of its jurisdiction, and, as was trulv said. 



"this alone would be conclusive of this case." 
5 Dill. 390, Fed. Cas. No. 7,720. In U. S. 
V. Crook, the Ponca Indians were discharge<l 
by Judge Dundy because the military officers 
who held them were taking them to the In- 
dian Territory by force and without any law- 
ful authority, (5 Dill. 408, Fed. Cas. No. 14,- 
801; I and in the case at bar, as the record 
before us shows, that itarned judge concur- 
red in the judgment below for the defend- 
ant. 

The law upon the question before us has 
been well stated by Judge Deady in the dis- 
trict court of the United States for the dis- 
trict of Oregon. In giving judgment against 
the plaintiff in a case resembling the case at 
bar, he said: "Being born a member of 'an 
independent political <'ommunity' — the Chi- 
nook—he was not born subject to the juris- 
diction of the United States — not born in its 
allegiance." McKa.v v. Campbell. 2 Sawy. 
118. 184. Fed. Cas. No. 8.840. And in a later 
case he said: "But an Indian cannot make 
himself a citizen of the United States with- 
out the consent and co-operation of the gov- 
ernment. The fact that he has abandoned 
his nomadic life or tribal relations, and 
adopted the habits and manners of civilized 
people, may be a good reason why he should 
be made a citizen ol the United States, but 
does not of itself make him one. To be a 
citizen of the United States is a political 
privilege which no one. not born to. can as- 
sume without its consent in some form. The 
Indians in Oregoii. not heing born subject 
to the jurisdiction of the United States, were 
not born citizens tliereof. and I am not aware 
of any law or treaty by which any of tliem 
have been made so since." U. S. v. Os- 
borne, <> Sawy. 40t;, 409, 2 Fed. 58. Upon the 
question whether an\ action of a state caiv 
confer rights of citizenship on Indians of a 
tribe still recognized by the T/nited States as 
retaining its tribal exif-lence. we need not, 
and do not, expres- an ooinion, becau.se the 
state of Nebniska is not shown to have taken 
any action affecting the condition of this 
plaintiff. See Chirac ■ . Chirac, 2 Wheat. 
259; Fellows v Blacksmith, 19 How. 8(50; 
U. S. V. Holliday. b Wall. 407, 420; U. S. v. 
Joseph. 94 U. S. G14. 018. The plaintiff, not 
being a citizen of the United States under 
the fourteenth amendment of the constitu- 
tion, has been deprived of no right secured 
by the fifteenth amendment, and cannot 
maintain this action. Judgment affirmed. 

Mr. Justice HARLAN and Mr. Justice 
WOODS, dissen . 



COXSTITUTIOXAL GUAllAXTIE-; IX CRIMINAL CASE>. 



199 



BKOWN V. WALKER, United States 
Marshal. 1 

(70 Fed. 46.) 

Oircuit Court, W. D. Pennsylvania. Sept. 11, 
1895. 

Before ACHESON. Circuit Jud^e. and 
BUFFINGTON, District Judge. 

Scott & Gordon, for petitioner. Harry Al- 
yan Hall, for U. S. marshal. 

BUFFINGTON, District Judge. On May 
<5, 189."). the grand jury of the district court 
of the United States for the Western dis- 
trict of Penns.ylvania had under considera- 
tion an indictment charging E. F. Bates and 
Thomas R. Robinson, officers and agents of 
the Allegheny Valley Railway Company, 
with alleged violations of the interstate com- 
merce law, approved February 4, 18S7, and 
its supplements. Theodore F. Brown, the 
petitioner, who is the auditor of said com- 
pany, appearad before the grand jury upon 
subpoena. He declined to answer certain 
'questions as to freight charged and rebates 
given by said road as follows: "Q. Have 
you audited the accounts of the freight de- 
l)artment of the said i-ailway company dur- 
ing the years 1894 and 1895? A. I have. Q. 
Do you know whether or not the Allegheny 
Valley Railway Company transported for the 
Union Coal Company, during the months of 
July, August, and September, 1894, coal from 
any points on the low-grade division of said 
railroad company to Buffalo at a less rate 
than the established rates in force between 
the terminal points at the time of such trans- 
portation? A. That question, with all re- 
spect to the grand jury and yourself, I must 
decline to answer, for the reason that my 
answer would tend to accuse and criminate 
me. Q. Do you know whether the Alle- 
gheny Valley Railway Company, during the 
year 1894, i)aid to the Union Coal Company 
any rebate, refund, or commission on coal 
transported by said railroad company fi'om 
points on its low-grade division to Buffalo, 
whereby the Union Coal Coiupany obtained 
a transportation of such coal between the 
said terminal points at a less rate than the 
open tariff rate, or the rate established by 
said company? If you have such knowledge, 
state the amount of such rebates or draw- 
backs or commissions paid, to whom paid, 
the date of the same, or on what shipments, 
and state fully all the particulars witliiu 
your knowledge relating to such transaction 
or transactions. A. That question I must 
also decline to answer for the reasons al- 
ready given." 

Upon report of these facts made by the 
grand jury through George D. Plowell, Esq.. 
its foreman, tlie district court granted a rule 
upon Mr. Brown to show cause why he 
should not answer the questions or be ad- 
judged guilty of contempt. He again re- 



1 Concurring opinion of Acheson, Circuit 
Judge, omitted. 



fused for the same reasons, and on report 
thereof made to the court, he was by it ad- 
judged guilty of contempt, sentenced to pay 
a fine, and committed to the custody of the 
marshal until he paid the same and answer- 
ed the questions. On May 7, 1895, he pre- 
sented a petition to the circuit court for a 
writ of habeas corpus. In it, after setting 
forth the above facts, he alleged his answers 
would tend to incriminate him, and if com- 
pelled to answer, he woidd be forced to be 
a witness against himself, contrary to tne 
provisions of the amendment to the consti- 
tution; that the act compelling him to testi- 
fy was unconstitutional; that the district 
court had no jurisdiction to I'equire him to 
answer these questions; and that his deten- 
tion by the marshal was unJawful. There- 
upon the writ issued, and to it the mai'shal 
made return justifying petitioner's detention 
under the order of the district court. 

The fifth amendment to the constitution 
provides: "No person * * * shall be com- 
pelled, in any criminal case, to be a witness 
against himself." And in Counselman v. 
Hitchcock. 142 U. S. 547. 12 Sup. Ct. 195, 
it was held this provision was not confined 
to a criminal case against the party himself; 
that its object was to insure that one should 
not be eompelled. when acting as a witness 
in any investigation, to give testimony which 
might tend to show he had committed a 
crime. It was also held that Rev. St. § 801), 
which provides that no evidence given by a 
Avitness shall be in any manner used against 
him in any court of the United States in any 
criminal proceedings did "not supply a com- 
plete protection from all the perils against 
which the constitutional prohibition was de- 
signed to guard, and is not a full substitu- 
tion for that prohibition," and afforded "no 
protection against that use of compelled tes- 
timony which consists in gaining therefrom 
a knowledge of the details of a crime, and 
of souices of information which may sxq>ply 
other means of convieting the witness or 
part,v." 

Following this decision, the act of Febru- 
ary 11. 1893. was passed, which provides: 
"That no person shall be excused from at- 
tending and testifying * * * in any cause 
or proceeding, criminal or otherwise, based 
upon ()7' growing out of any alleged viola- 
tion of the act of congress, entitled 'An act 
to regulate commerce,' approved February 
fourth, eighteen hundred and eighty-seven, 
or of any amendment thereof, on the ground 
01- for the reason that the testimony or evi- 
dence, documentary or otherwise, required 
of him, may tend to criminate him or sub- 
ject him to a penalty or forfeiture. But no 
person shall be pi'osecuted n- subjected to 
any penalty or forfeiture for or on account 
of any transaction, matter or thing, concern- 
ing which he may testify, or produce evi- 
dence, documentary or otherwise * * * jq 
any such case or proceeding." 

The constitutionality of this act is now 



200 



CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. 



challenged ou the ground— First, that the 
constitutional provision already quoted is a 
protection not only from pains and penalties, 
but from the infamy which follows the dis- 
closure of the commission of a crime, and 
that the act simply relieves from pains and 
penalties; second, that the act does not give 
a protection as broad as the constitutional 
privileges, because it places the witness un- 
der the necessity of proving the fact, etc., 
of his having been called to testify, and 
leaves him exposed to the jeopardy of con- 
viction; and, third, the act is in substance 
a pardon and an infringement on the par- 
doning power vested by the constitution in 
the executive. 

The question is one of grave importance to 
the petitioner, as involving his alleged con- 
stitutional rights, and to the general public, 
as involving the enforcement of the inter- 
state commerce law. It is cleai", if the wit- 
ness is justified in his refusal to answer, 
the enforcement of that law is virtually im- 
possible, since violations thereof can be prov- 
ed only by those who woxild refuse to an- 
swer. Unfortunate as this might be, still, 
if the enforcement of any act of congress 
sacrifices the constitutional rights of the cit- 
izen, the act must yield to the higher law 
of the constitution. But when a statute has 
been passed by the legislative branch of the 
government, the judicial branch will act with 
great caution in declaring it unconstitution- 
al, and will do so "only," as Chief Justice 
Black said, in Sharpless v. Mayor, etc., of 
Pliiladelphia. 21 Pa. St. 164, "when it vio- 
lates the constitution clearly, palpably, plain- 
ly, and in such manner as to leave no doubt 
or hesitation on our minds." For, as Chief 
Justice Marshall said, in Fletcher v. Peck, G 
Cranch, 126: "The question, whether a law 
be void for its repugnancy to the constitu- 
tion is, at all times, a question of much del- 
icacy, which ought seldom, if ever, to be de- 
cided in the affirmative in a doubtful case. 
The court, when impelled by duty to render 
such a judgment, would be unworthy of its 
station, could it be unmindful of the solemn 
obligations which that station imposes. But 
it is not on slight implication and vague con- 
jecture that the legislature is to be pronoun- 
ced to have transcended its powers, and its 
acts to be considered as void. The opposi- 
tion between the constitution and the law 
should be such that the judge feels a clear 
and strong conviction of their incompatibil- 
ity with each other." 

The provision that "no person * * * 
shall be compelled in anv criminal case to 
be a witness against himself" placed the 
bulwark of constitutional protection around 
that which had long been a recognized right 
of the citizen under the rules of evidence, 
and was summed up in the time-honored 
maxim, "Nemo tenetur seipsum accusare." 
1 Starkie, Ev. 71, 191; 1 Greenl. Ev. § 451; 
Whart. Cr. Ev. § 463, and cases cited on 
page 547 of 142 U. S., and page 195 of 12 



Sup. Ct. It was meant to protect him from 
self-crimination, to exempt him from making 
disclosures v.'hich might lead to his subse- 
quent conviction. It was embodied in an 
amendment which, in its other provisions, 
secured his rights in criminal cases, viz. the 
safeguard of a precedent indictment or pre- 
sentment, — against his being put twice in 
jeopardy for the same offense,— and insured 
him due process of law when life and lib- 
erty were at stake. Clearly, its purpose was 
to shield him from compulsory disclosures 
which might lead to his conviction of a crime. 
If the constitutional purpose was to shield 
him from disclosures which would merely 
tend to humiliate or disgrace him in the 
eyes of his fellows, it was not so expressed. 
Judging from the character of the instru- 
ment itself, which is admittedly a model of 
simplicity and clearness, it is fair to assume 
that if such a right were deemed worthy of 
the dignity of constitutional protection, it 
would have been stated in words so plain 
"that he may run that readeth it." But the 
obligation of a witness to answer questions 
of that character, if pertinent to the issue, 
is well recognized. 1 Rose. Cr. Ev. 234; 1 
Greenl. Ev. (14th Ed.) §§ 455, 4.56, 458, 4.59; 
Thomp. Trials, § 287; Jennings v. Prentice, 
39 Mich. 421. And in Parkhurst v. Lowten, 
1 Mer. 400, Lord Eldon said: "Upon the 
question of character, I hold that, supposing 
a man to be liable to penalty or forfeiture, 
provided he is sued within a limited time, 
and that the suit is not commenced till after 
the limitation expired, he is bound to answer 
fully, notv.'ithstanding his answer may tend 
to cast a very great degree of reflection up- 
on his character and conduct." 

In Com. V. Roberts, Brightly, N. P. 109, it 
was held it was competent for the legisla- 
ture of Pennsylvania to pass an act under 
which a witness may be compelled to answer 
questions which may not show him to be 
criminal, but which involve him in shame 
and reproach. 

To our mind it is clear the infamy or dis- 
grace to a witness which may result from 
disclosures made by him are not matters 
against which the constitution shields, and 
that so long as such disclosures do not con- 
cern a crime of which he may be convicted, 
the provision quoted does not apply. But 
does the act of congress give the petitioner 
as broad protection as the constitutional pro- 
vision? Unquestionably it does. It says he 
"shall not be prosecuted or subjected to any 
penalty or forfeiture tor or on account of 
any transaction, matter or thing, concerning 
which he may testify or produce evidence, 
documentary or otherwise." This affords 
him absolute indemnity against future pi'os- 
ecution for the offense to which the ques- 
tion relates. The act of testifying has, so 
far as he is concerned, wiped out the crime. 
It has excepted him from the operation of 
the law, and. as to him, that which in others 
is a crime has been expunged from the slat- 



PRIVILEGE AGAINST SELF-CRIMIXATING EVIDEKCE. 



mi 



ute books. If, then, there exists, as to him, 
no crime, there can be no self-crimination in 
any testimony he gives, and if there can be 
no self-crimination, if neither conviction, 
judgment, nor sentence can directly or in- 
directly result from his testimony, what need 
has he for the constitutional provision? For, 
says Broom (Leg. Max. p. 654), in speaking 
of the maxim quoted above, "Where, how- 
ever, the reason for the privilege of the wit- 
ness or party interrogated ceases, the priv- 
ilege will cease also; as, if the prosecution 
to which the witness might be exposed on 
his liability to a penalty or forfeiture is 
barred by lapse of time, or if the offense has 
been pardoned, or the penalty or forfeiture 
waived,"— a doctrine approved, as we have 
seen above, by Lord Eldon. 

In practical effect, the legislative act 
throws a greater safeguard around the peti- 
tioner than the constitutional provision. Be- 
fore he testified, he could have been charged 
with a violation of the interstate commerce 
law, in which case the amendments only pro- 
tected him against compulsory self-crimina- 
tion. He was liable to a possible verdict of 
guilty if the necessary proofs were given, 
but under the legislative act, when he has 
testified the law excepts him from its opera- 
tion, makes that which was before a possible 
crime a mere mattei of indifference, and 
shields him from subsequent prosecution. 
The sweeping words of the statute,— as broad 
as human language can make them, — afford ab- 



solute indemnity to the witness. No crime ex- 
ists as to him. It is not a pardon,— not an act: 
of amnesty. No charge can be made against 
him, for it is illegal to even prosecute him, 
viz. "No person shall be prosecuted." To our 
mind, the constitutional provision in words 
and purpose is plain. In the Counselman 
Case, the witness was protected from the 
manifestly self-criminating answers which: 
would have disclosed facts upon which a 
prosecution, to which he was still left ex- 
posed, could be based. But, owing to the 
act of 1893, no such consequence can ensue 
if the present petitioner is made to ansv»'er. 
Such being the case, the constitutional pro- 
vision does not concern him, and if it does 
not, the act which compels him to testify is 
not unconstitutional. 

In reaching this conclusion we have given 
due regard to the case of U. S. v. James, 60 
Fed. 257, where the act »vas held to be un- 
constitutional. While we regret to differ- 
from this only federal decision on the mat- 
ter, we find support for our position in the 
opinion of the supreme court of New Hamp- 
shire, in State v. Nowell. 58 N. H. 314, and 
of the supreme court of California in Ex 
parte Cohen (Cal.) 38 Pac. 364. 

The prayer of the petitioner to be dischar- 
ged will therefore be denied, and he will be 
remanded to the custody of the marshal. 

ACHE SON, Circuit Judge, concurs. 

* * * * * *^ ft: 



202 



LAWS IMPAIRING THE OBLIGATIOX OF CONTRACTS. 



TKUSTKES OF DARTMOUTH COELEGP: 
V. WOODWARD. 1 



(4 Wheat. 518.) 

Suiii'cmt' Court of the FnitoJ States. 
Term, 1811t. 



Feb. 



Error to the superior oourt i>f the stale of 
New Ilninpshhc. 

This Avas an action of trover instituted in 
a court of the state of Nev.- Ilaninsliiie by 
the trustees of Dartnioutli College auainst 
William AV. WoodAvanl. There was a .judg- 
ment for defendant which was attirmeil by 
the superior coui't of the state of New Hamp- 
shii'e and plaintiffs broujiht error. Reversed. 

Webster ^ Hopkinson. for ])laintiffs in er- 
roi'. 

Mr. Holmes and The A1torney-(!(Mieral. 
contra. 

Mr. Chief .Tusti<-c MARSHALL delivered 
the opinion of tin- court. 

This is an action of trover, bronjiht by the 
trustees of Dartmouth Collejje, ajjainst Wil- 
liam H. Woodward, in the state court of 
New Hampshire, for the book of records, 
corporate seal, and other corporate property, 
to which the plaintiffs allege themselves to 
be entitled. 

A special verdict, after setting out the 
rights of the parties, finds for the defend- 
ant, if certain acts of the legislature of NeAV 
Hami)shirt\ passed on the 27th of .Ttine. and 
on th(^ bSth of Decembf-r. 18"l(^ be valid, and 
l)inding on the trustees without their assent, 
and not repugnant to the constitution of the 
I'nited States; otlierwise it finds for the 
])laintiffs. 

The superior court of judicature of New 
Ham]ishire rend(>i'ed a judgment upon this 
verdict for the defendant, which judgment 
has been brought before this cotul by writ 
of error. The single question now to be 
<-onsidered is, do the acts to whicli the ver- 
dict refers violate the constitution of the 
Finted States'.' 

This coiu't c;in be insensible iieiTlier to tlie 
magnitude nor delicacy of this (luestion. 
The A'alidity of a legislative act is to be ex- 
amined; and the opinion of the highest law 
tribunal of a state is to be revised; an opin- 
ion which carries Avith it intrinsic evidence 
of the diligence, of the ability, and the in- 
t(>grity with which it was formed. On more 
than one occasion this coiu't has exijressed 
the cautious circumspection with which it 
approaches the consideration of such ques- 
tions; and has declared that, in no doubtful 
case. Avottld it pronounce a legislative act to 
be contrar.v to the constitution. But the 
American peojile have .said, in the constitu- 
tion of the I'nited States, that "no state shall 
pass any bill of .-ittainder, ex post facto law, 

1 Concurring opinions of Mr. .Tiistice Washing- 
ton and Mr. Justice Story, ami (iissciiting opin- 
ion of Mr. Justice Duvall, omitted. 



or law impairing the obligation of contracts." 
In the same instrument they have also said, 
"that the judicial power shall extend to all 
cases in law and eqtiity arising under the con- 
stitution." On the jttdges of this court, then, 
is imposed the high and solemn duty of pro- 
tecting, from even legislative violation, those 
contracts Avliich tlie constitution of our coini- 
try has pla<'ed beyond legislative control; 
and. however irksome the task nuiy be, this 
is a duty from which we dare not shrink. 

The title of the plaintiffs originates iu a 
charter, dated the 13th day of December, in 
the year 17G9, incorporating twelve persons 
therein mentioned, by the name of "The 
Trustees of Dartmouth College," granting 
to them and their successors the tisnal cor- 
porate privileges and powers, and authoriz- 
ing the trustees. Avho are to govern the col- 
lege, to fill up all vacancies which may be 
created in their own body. 

The defendant claims under three acts of 
the legislature of NeAV Hampshire, the most 
material of which aacIS passed on the 27th of 
June. ISIO. and is entitled, "An act to amend 
the charter, and enlarge and imi)rove the 
corpoi'ation of Dartmouth College." Among 
other alterations in the charter, this act in- 
creases the iuind)er of trustees to twenty- 
one, gives the appointment of the additional 
members to the executive of the state, and 
creates a board of oA'erseers. Avith poAA'er to 
inspect and control the most important acts 
of the trustees. This board consists of 
tAA'cnty-five persons. The president of the 
s<uiate, the speaker of the house of repre- 
sentatives of NcAV Hampshire, and the gov- 
ernor and lieutenant governor of Vermont, 
for the time being, are to be mendiers ex 
officio. The board is to be completed by 
the goA-ernor and council of Ncaa' Il!im))shire, 
Avho are also emi)OAvered to fill all vacancies 
Avhich may occur. The acts of the ISth and 
2(;tli of December are stipplemental to that 
of the 27th of June, and are principally in- 
tended to cari-y that act into effect. 

The majority of the trtistees of the college 
luiA'c refused to accept this amended charter, 
and have brought this suit for the corporate 
l)ro]»erty, Avhich is in possession of a person 
holding by Aurtue of the acts Avhicli have 
been stated. 

It can require no argument to proA'e, that 
the circumstances of this case constitute a 
contract. An application is made to the 
crown for a charter to incorpoi'ate a religious 
and literar.v institittion. In the application 
it is .stated, that large contributions have 
been made for the object, Avhich Avill be con- 
ferred on the corpoiation, as soon as it shall 
be created. The charter is granted, and on 
its faith the property is conve.ved. Surely, 
in this transaction, every ingredient of a 
comi)lete and legitimate contract is to be 
found. 

The points for consideration are. 

L Is this contract protected l)y the con- 
stitution of the United States? 



CHARTERS AS CONTRACTS. 



203 



2. Is it impaii-od by tlie acts under wluc-li 
the defendant holds? 

1. On the first point it has been argued, 
that the word "contract," in its broadest 
sense, wonld comprehend tlie political rela- 
tions between tlie government and its citi- 
zens, would extend to offices held within a 
state for state purposes, and to many of 
those laws concerning civil institutions, 
which must change with circumstances, and 
be modified by ordinary legislation; which 
deeply concern the public, and which, to 
preserve good government, the public judg- 
ment must control. That even marriage is 
a contract, and its obligations are affected 
by the laws respecting divorces. That the 
clause in the constitution, if construed in 
its greatest latitude, would prohibit these 
laAvs. Taken in its broad unlimited sense, 
the clause would be an unprofitable and 
vexatious interference with the internal con- 
cerns of a state, would unnecessarily and un- 
wisely embarrass its legislation, and render 
immutable those civil institutions which are 
established for puj'poses of internal govern- 
ment, and which, to subserve those purposes, 
ought to vary with varying circumstances. 
That as the framers of the constitution could 
never have intended to insert in that instru- 
ment .a provision so unnecessary, so mis- 
chievous, and so repxignant to its general 
spirit, the term "contract" must be under- 
stood in a more limited sense. That it must 
be understood as intended to guard against 
a power of at least doubtful utility, the 
abuse of Avhich had been extensively felt; 
and to restrain the legislature in future from 
A^iolating the right to propeVty. That ante- 
rior to the formation of the constitution, a 
course of legislation had prevailed in many, if 
not in all, of the states, which weakened the 
confidence of man in man, and embarrassed 
all transactions between individuals, by dis- 
pensing with a faithful performance of en- 
gagements. To correct this mischief, by re- 
straining the power which produced it. the 
state legislatures were forbidden "to pass 
any law impairing the obligation of con- 
tracts." that is. of contracts respecting prop- 
erty, under Avhich some individual could 
claim a right to somtthing beneficial to him- 
self; and that since the clause in the con- 
stitution must, in construction, receive some 
limitation, it may be confined, and ought to 
be confined, to casts of this description; to 
cases within the miscliief it was intended to 
remedy. 

The general correctness of these observa- 
tions cannot be controverted. That the 
framers of the constitution did not intend to 
restrain the states in the regiilation of their 
civil institiitions. adopted for internal gov- 
ernment, and that the instrument they have 
given us is not to be so construed, may be 
admitted. The provision of the constitution 
never has been understood to emhi'ace other 
contracts than those which respect proper- 
ty, or some object of value, and confer rights 



Avhicli may be asserted in a court of jusxiee. 
It never has been understood to restrict 
the general right of the legislature tolegislate 
on the subject of divorces. Those acts enable 
some tribunal, not to impair a marriage con- 
tract, but to liberate one of the parties because 
it has been broken by the other. When any 
state legislature shall pass an act annidllng 
all marriage contracts, or allowing either 
party to annul it without the consent of the 
other, it will be time enough to inquire 
whether such an act be constitutional. 

The parties in this case differ less on gen- 
eral principles, less on the true construction 
of the constitution in the abstract, than on 
the application of those principles to this 
case, and on the true construction of the 
charter of 1769. This is the point on which 
the cause essentially depends. If the act of 
! incorporation be a grant of political power, 
i if it create a civil institution to be employed 
j in the administration of the government, or 
I if the funds of the college be public property, 
i or if the state of New Hampshire, as a gov- 
j ernment, be alone interested in its transac- 
i tions, the subject is one in which the leg- 
! islature of the state may act according to 
i its own judgment, unrestrained by any lim- 
1 itation of its power imposed by the constitu- 
! tion of the United States. 

But if this be a private eleemosynary insti- 
tution, endowed with a capacity to take prop- 
erty for objects unconnected with govern- 
ment, whose funds are bestowed by individ- 
uals on the faith of the chai-ter; if the donore 
have stipulated for the future disposition 
and management of those funds in the man- 
ner prescribed by themselves; there may be 
more difticixlty in the case, although neither 
the persons who have made these stipula- 
tions, nor those for whose benefit they Avere 
made, should be parties to the cause. Those 
Avho are no longer interested in the property, 
may yet retain such an interest in the pres- 
ervation of their own arrangements, as to 
have a right to insist that those arrange- 
ments shall be held sacred. Or, if they have 
themselves disappeared, it becomes a subject 
of serious and anxious inquiry, whether those 
whom they have legally empowered to rep- 
I'esent them forever, may not assert all the 
fights which they possessed, while in being; 
whether, if they be without personal rep- 
resentatives who may teel injured by a A'io- 
lation of the compact, the trustees be not so 
completely their rejirt sontatives in the eye 
of the law, as to stand in their place, not 
only as respects the government of the col- 
lege, but also as respects the maintenance 
of the college charter. It becomes then the 
duty of the court most seriously to examine 
this charter, and to ascertain its true char- 
acter. 

From the instrument itself, it appears, 
that about the year 17.j4, the Rev. Eleazer 
Wheelock established, at his own expense, 
and on his own estate, a charity school for 
the instruction of Indians in i\ e Christian 



204 



LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. 



religion. The success of this institution in- 
spired him with the design of soliciting con- 
tributions in England, for carrying on and 
extending his undertaking. In this pious 
work, he employed the Rev. Nathaniel Whit- 
aker, who, by virtue of a power of attorney 
from Dr. Wheeloek, appointed the Earl of 
Dartmouth and others, trustees of the mon- 
ey which had been and should be contrib- 
uted; which appointment Dr. Wheeloek con- 
firmed by a deed of trust authorizing the 
trustees to fix on a, site for the college. They 
determined to establish the school on Con- 
necticut river, in the western part of New 
Hampshire; that situation being supposed 
favorable for carrying on the original de- 
sign among the Indians, and also for pro- 
moting learning among the English; and tlie 
proprietors in the neighborhood having made 
large offers of land, on condition that the 
college should there be placed. Dr. Whee- 
loek then applied to the crown for an act of 
incorporation; and represented the expedi- 
ency of appointing those whom he had, by 
his last will, named as trustees in America, 
to be members of the proposed corporation. 
"In consideration of the premises," "for the 
education and instruction of the youth of 
the Indian tribes," &c., "and also of English 
youth, and any others," the chai'ter was 
granted, anel the trustees of Dartmouth Col- 
lege were by that name createel a body cor- 
porate, with power, for the use of the said 
college, to acquire real and personal proper- 
ty, and to pay the president, tutors, and oth- 
er oflicers of the college, such salaries as 
they shall allow. 

The charter proceeds to appoint Eleazer 
Wheeloek, "the founder of said college," 
president thereof, with power, by his last 
will, to appoint a successor, who is to con- 
tinue in office until disapproveel by the trus- 
tees. In case of vacancy, the trustees may 
apiwint a president, anel in case of the ceas- 
ing of a president, the senior professor or 
tutor, being one of the trustees, shall exer- 
cise the office, until an appointment shall be 
made. The trustees have power to appoint 
anel elisplace professors, tutors, and other 
officers, and to supply any vacancies which 
may be created in their own body, by death, 
resignation, removal, or disability; and also 
to make orders, ordinances, anel laws, for 
the government of tlie college, the same not 
being repugnant to the laws of Great Brit- 
ain, or of New Hampshire, and not excluding 
any person on account of his speculative 
sentiments in religion, or his being of a 
religious profession different from that of 
the trustees. 

This charter was accepted, and the proper- 
ty, both real and personal, which had been 
contributed for the benefit of the college, 
was conveyed to, and vested in, the cor- 
porate body. 

From this brief review of the most essen- 
tial parts of the charter, it is apparent, that 
the funds of the college consisted entirely 



of private elonations. It is, perhaps, not 
very important, who were the donors. The 
probability is, that the Earl of Dartmouth, 
and the other trustees in Englanel, were, in 
fact, the largest contributors. Yet the legal 
conclusion, from the facts recited in the 
charter, would probably be. that Dr. Whee- 
loek was the foiuider of the college. 

The origin of the institution was, undoubt- 
edly, the Indian charity school, established 
by Dr. Wheeloek, at his own expense. It 
was at his instance, and to enlarge this 
school, that contributions were solicited in 
Englanel. The person soliciting these con- 
tributions was his agent; and the trustees, 
who received the money, were appointee! by, 
and act under, his authority. It is not too 
much to say, that the functs were obtained 
by him, in trust, to be applied by him to the 
pui'poses of his enlarged school. The char- 
ter of incorporation was granted at his in- 
stance. The persons named by him in his 
last will, as the trustees of his charity school, 
compose a part of the corporation, and he 
is eleclareel to be the founeler of the college, 
and its president for life. Were the inquiry 
material, we should feel some hesitation in 
saying, that Dr. Wheeloek was not, in law, 
to be consielereel as the founeler (1 Bl. Comm. 
481) of this institution, and as possessing 
all the rights appertaining to that character. 
Biit be this as it may, Dartmouth College is 
really enelowed by private individuals, who 
have bestoweel their funds for the propaga- 
tion of the Christian religion among the In- 
dians, and for the promotion of piety and 
learning generally. From these funds the 
salaries of the tutors are elrawn; and these 
salaries lessen the expense of education to 
the stuelents. It is then an eleemosynary 
(1 Bl. Comm. 471), and, as far as respects 
its funels, a private corporation. 

Do its objects stamp on it a different char- 
acter? Are the trustees and professoi-s pub- 
lic officers, invested with any portion of 
political power, partaking in any degree in 
the administration of civil government, and 
performing duties which flow from the sov- 
ereign authority? 

That education is an object of national con- 
cern, and a proper subject of legislation, all 
admit. That there may be an institution 
founded by government, and placed entii'ely 
uneler its immediate control, the officers of 
which would be public officers, amenable ex- 
clusively to government, none will eleny. But 
is Dartmouth College such an institution? 
Is eelucation altogether in the hands of gov- 
ernment? Does every teacher of youth be- 
come a public officer, and do donations for 
the purpose of education necessai-ily become 
public property, so far that the will of the 
legislature, not the will of the donor, be- 
comes the law of the donation? These ques- 
tions are of serious moment to society, and 
deserve to be well considered. 

Doctor Wheeloek, as the keeper of his char- 
ity school, instructing the Indians in the art 



CHARTERS AS CONTRACTS. 



205 



of reading, and in our holy religion; sus- 
taining them at his own expense, and on the 
voluntary contribvitions of the charitable, 
could scarcely be considered as a public of- 
ficer, exercising any portion of those duties 
which belong to government; nor could the 
legislature have supposed, that his private 
funds, or those given by others, were sub- 
ject to legislative management, because they 
were applied to the purposes of education. 
"When afterwards, his school was enlarged, 
and the liberal contribvitions made in Eng- 
land and in America, enabled him to extend 
his cares to the education of the youth of 
liis own country, no change was wrought in 
his own character, or in the nature of his 
duties. Had he employed assistant tutors 
with the funds contributed by others, or had 
the trustees in England established a school, 
with Dr. Wheelock at its head, and paid 
salaries to him and his assistants, they 
would still have been private tutors; and 
the fact that they were employed in the ed- 
ucation of youth, could not have converted 
them into public officers, concerned in the ad- 
ministration of public duties, or have given 
the legislature a right to interfere in the 
management of the fund. The trustees, in 
whose care that fund was placed by the con- 
tributors, would have been permitted to exe- 
cute their trust, unconti'olled by legislative 
authority. 

Whence, then, can be derived the idea, that 
Dartmouth College has become a public in- 
stitution, and its trustees public ofiicers, ex- 
ercising powers confeiTed by the public, for 
public objects? Not from the source whence 
its funds were drawn; for its foundation is 
purely private and eleemosynary. Not from 
the application of those funds; for money 
may be given for education, and the persons 
receiving it do not, by being employed in the 
education of youth, become members of the 
•civil government. Is it from the act of in- 
■corporation ? Let this subject be considered. 

A corporation is an artificial being, invis- 
ible, intangible, and existing only in con- 
templation of law. Being the mere creature of 
law, it possesses only those properties which 
the charter of its creation confers upon it, 
either expressly, or as incidental to its very 
existence. These are such as are supposed 
best calculated to effect the object for which 
it was created. Among the most important 
are immortality, and, if the expression may 
be allowed, individualitjs properties by 
which a perpetual succession of many per- 
sons are considered as the same, and may 
act as a single individual. They enable a 
corporation to manage its own affairs, and 
to hold property without the perplexing in- 
tricacies, the hazardous and endless neces- 
sity of perpetual conveyances, for the pur- 
pose of transmitting it from hand to hand. 
It is chiefly for the purpose of clothing bod- 
ies of men, in succession, with these quali- 
ties and capacities, that corporations were 
invented, and are in use. By these means a 



perpetual succession of individuals are ca,- 
pable of acting for the promotion of the par- 
ticular object, like one immortal being. But 
this being does not share in the civil govern- 
ment of the country, unless that be the pur- 
pose for which it was created. Its immor- 
tality no more confers on it political power, 
or a political character, than immortality 
would confer such power or character on a 
natural person. It is no more a state in- 
strument, than a natural person exercising 
the same powers would be. If, then, a nat- 
ural person, employed by individuals in the 
education of youth, or for the government 
of a seminarj^ in which youth is educated, 
would not become a public officer, or be con- 
sidered as a member of the civil government, 
how is it that this artificial being, created 
by law, for the purpose of being employed 
by the same individuals for the same pur- 
poses, should become a part of the civil gov- 
ernment of the country? Is it because its 
existence, its capacities, its powers, are giv- 
en by law? Because the government has 
given it the power to take and to hold prop- 
erty in a particular form, and for particular 
purposes, has the government a consequent 
right substantially to change that form, or 
to vary the purposes to which the property 
is to be applied? This principle has never 
been asserted or recognized, and is support- 
ed by no authority. Can it derive aid from 
reason? 

Tlie objects for which a corporation is 
created are universally such as the govern- 
ment wishes to promote. They are deemed 
beneficial to the country; and this benefit 
constitutes the consideration, and, in most 
cases, the sole consideration, of the grant. 
In most eleemosynary institutions, the ob- 
ject would be difficult, perhaps unattainable, 
without the aid of a charter of incorpora- 
tion. Charitable, or public-spirited individ- 
uals, desirous of making permanent appro- 
priations for charitable or other useful pur- 
poses, find it impossible to effect their 
design, securely and certainly, without an in- 
corporating act. They apply to the govern- 
ment, state their beneficent object, and of- 
fer to advance the money necessary for its 
accomplishment, provided the government 
Avill confer on the instrument, which is to 
execute their designs, the capacity to exe- 
cute them. The proposition is considered 
and approved. The benefit to the public is 
considered as an aiuple compensation for the 
faculty it confers, and the corporation is 
created. If the advantages to the public 
constitute a full compensation for the fac- 
ulty it gives, there can be no reason for 
exacting a further compensation, by claim- 
ing a right to exercise over this artificial be- 
ing a power which changes its nature, and 
touches the fund, for the security and appli- 
cation of which it was created. There can 
be no reason for implying in a charter, giv- 
en for a valuable consideration, a power 
which is not only not expressed, but is in 



206 



LAW8 IMl'AIKING THE OBLIGATION OF CONTRACT.S. 



direct coutradietion to its express stipula- 
tions. 

From the fact, then, that a charter of in- 
corporation has been jjrauted, nothing can be 
infei'red which chan.ires the character of the 
institution, or ti-ansfers to the j^overunieut 
any new power over it. The character of civil 
institutions does not gi'ow out of their in- 
(•orj)oration, but out of the manner in which 
they are formed, and the objects for which 
they are created. The ritjht to cliause them 
is not founded on their l)ein,i; incoi-porated, 
but on their beins the instruments of yov- 
erumeut, created for its purposes. The same 
institutions, created for the same objects, 
thouf^h not incor])orated, would be public in- 
stitutions, and. of course, be controllable by 
the lejrislature. The incorpoi-atin.i; act nei- 
ther s'ives nor prevents this control. Nei- 
ther, in reason, can the incorporating act 
<-lianj;e the character of a private eleemosy- 
nary institution. 

We are next led to the in(iuiry, lor whose 
benetit the pro])erty given to Dartmouth Col- 
lege was secured? The counsel for the de- 
fendant have insisted, that the beneticial in- 
terest is in the people of New Hampshire. 
The charter, after reciting the preliminary 
measures Avliich had been taken, and the aj)- 
jilication for an act of incorporation, pro- 
ceeds thus: "Know ye. therefore, that we, 
considering the premises, and being willing 
to «>ncourage the laudable and charitable de- 
sign of spreading ('hristian knowledge among 
the savages of our American wilderness, and, 
also, that the best means of education be 
established, in our province of New Hamp- 
shire, for the benefit of said province, do. 
of our special grace,"' &c. Do these expres- 
sions bestow on New Ham]>shire any exclu- 
sive right to the property of the college, any 
exclusive interest in the labors of the pro- 
fessors? Or do they merely indicate a will- 
ingness that New Hampshire should enjoy 
those advantages which result to all from 
the establishment of' a seminary of learn- 
ing in the neighborhood? On this point we 
think it impossible to entertain a seriovis 
doubt. The words themselves, unexplained 
by the context, indicate, that the "benefit in- 
tended for the province" is that which is de- 
rived from "establishing the best means of 
education therein;" that i.s, from establish- 
ing in the province Dartmouth College, as 
constituted by the charter. But if these 
words, considered alone, could admit of 
doubt, that doubt is completely removed by 
an inspection of the entire instrument. 

The ]iarticular interests of New Hamp- 
shire never entered into the mind of the 
donors, never constituted a motive for their 
donation. The propagation of the Christian 
religion among the savages, and the dissem- 
ination of useful knowledge among the youth 
of the country, were the avowed and the 
sole objects of their contributions. In these, 
NeAV Hampshire would participate; but 
nothing particular or exclusive was intend- 



ed for her. Even the site of the college was 
selected, not for the sake of New Hamp- 
shire, but because it was "most subservient 
to the great ends in Aiew," and because lib- 
eral donations of land were offered by the 
proprietors, on condition that the institution 
should be there established. The real ad- 
vantages from the location of the college, 
are, perhaps, not less considerable to those 
on the west, than to those on the east side 
of Connecticut riA'er. The clause which eou- 
stitules the incorporation, and expresses the 
objects for Avhich it Avas made, declares 
those objects to be the instruction of the 
Indians, "and also of English youth, and 
any others." So that the objects of the con- 
tributors, and the incorporating act, were 
the same: the promotion of Christianity, and 
of education generally, not the interests of 
New Hampshire particularly. 

From this review of the charter, it ai)- 
l)ears, that Dartmouth Coll«»ge is an elee- 
mosynary institution, incorporated for the 
imrpose of perpetuating the application of 
the bounty of the donors, to the specified ob- 
jects of that bounty; that its trustees or gov- 
ernors Mere originally named by the foiind- 
er, and invested with the power of perpet- 
uating themselves; that they are not pul)lic 
otHcers, nor is it a civil institution, partici- 
pating in the administration of government; 
but a charity school, or a seminary of edu- 
i-ation, incorporated for the preservation of 
its property, and the perpetual application 
of that property to the objects of its crea- 
tion. 

Yet a question remains to be considered, 
of more real difficulty, on which more doubl 
has been entertained than on all that have 
been discussed. The founders of the college, 
at least those whose contributions were in 
money, have parted with the property be- 
stowed upon it. and their representatives 
liaAe no interest in that property. The do- 
nors of land are equally without interest, so 
long as the cor])oration shall exist. Coidd 
they be found, they are unaffected by any 
alteration in its constitution, and probably 
i-egardless of its form, oi" even of its exist- 
ence. The students are fiuctuating, and no 
individual among our youth has a vested in- 
terest in the institution, which can be as- 
serted in a court of justice. Neither the 
founders of the college, nor the youth for 
whose benefit it was founded, complain of 
the alteration made in its charter, or think 
themselves injured by it. The trustees alone 
complain, and the trustees have no benefi- 
cial int<»rest to be protected. Can this be 
sucii a contract as the constitution intended 
to withdraw from the power of state legis- 
lation? Contracts, the parties to which have 
a vested beneticial interest, and those only, 
it has been said, are the objects about which 
the constitution is soli<-itous, and to which 
its pi-otection is extended. 

The court has bestowed on this argument 
the most deliberate consideration, and the 



ClIARTEllS AS CO]S^TRACTS. 



207 



result will be stated. Dr. Wlioelock. acting 
loi- liiinself, and for those who, at his solici- 
tation, had made contributions to his scliool, 
applied for this charter, as the instrument 
which should enable him and them to per- 
petuate their beuefleent intention. It was 
granted. An artificial, immortal being, was 
created by the crown, capable of receiving and 
distributing forever, according to the will of 
the donors, tlie donations which should be 
made to it. On this being, the contributions 
which had been collected were immediately 
bestowed. These gifts were made, not in- 
deed to mali;e a profit for the donors or their 
posterity, but for something in their opinion' 
of inestimable value; for something which 
they deemed a full equivalent for the money 
with ^Ahich it was purchased. The consider- 
ation for which they stipulated, is the per- 
petual application of the fund to its object, 
in the mode prescribed by themselves. Their 
descendants may take no interest in the pres- 
ervation of this consideration. But in this 
respect their descendants are not their rep- 
resentatives. They are represented by the 
corporation. The corporation is the assignee 
of their rights, stands in their place, and 
distributes their bounty, as they would 
themselves have distributed it, had they 
been immortal. So witli respect to the stu- 
dents who are to derive learning from this 
source. The corporation is a trustee for 
them also. Their potential rights, wliich, 
taken distributively, are imperceptible, 
amoTint, collectively, to a most important in- 
terest. These are, in the aggregate, to be 
exercised, asserted, and protected, by the 
corporation. They were as completely out of 
the donors, at the instant of their being vest- 
ed in the corporation, and as incapable of 
being asserted by tlie students, as at pres- 
ent. 

According to the theory of the British con- 
stitution, their parliament is omnipotent. 
To annul corporate rights might give a shock 
to public opinion, which that government has 
chosen to avoid; but its power is not ques- 
tioned. Had parliament, immediately after 
the emanation of this charter, and the ex- 
ecution of those conveyances which follow- 
ed it, annulled the instrument, so that the 
living donors would have witnessed the dis- 
appointment of their hopes, the perfidy of 
the transaction Avould have been universally 
acknowledged. Yet then, as now, the do- 
nors would have had no interest in the prop- 
erty; then, as now, those Avho might be 
students would have had no rights to be vio- 
lated; then, as now, it might be said, that 
the trustees, in whom the rights of all were 
combined, possessed no private, individual, 
beneficial intei-est in the property cpnfided 
to their protection. Yet the contract would 
at that time have been deemed sacred by all. 
What has since occurred to strip it of its 
inviolability? Circumstances have not chan- 
ged it. In reason, in justice, and in law, it 
is now what it was in 17G9. 



This is plainly a contract to Avhich the 
donors, the trustees, and the crown, (to whose 
rights and obligations New Hampshire suc- 
ceeds.) were the original parties. It is a 
contract made on a valuable consideration. 
It is a contract for the security and disposi- 
tion of property. It is a contract, on the 
I faith of Avhich, real and personal estate has 
j been conveyed to the corporation. It is then 
a contract within the letter of the constitu- 
j tion, and within its spirit also, unless the 
i fact that the property is invested by the 
j donors in trustees, for the promotion of re- 
ligion and education, for the benefit of per- 
sons who are perpetually changing, though 
the objects remain the same, shall create a 
particular exception, taking this case out of 
the prohibition contained in the constitution. 
It is more than possible that the preserva- 
tion of rights of this description was not 
particularly in the view of the framers of 
the constitution, when the clause under con- 
sideration was introduced into that instru- 
ment. It is probable that interferences of 
more frequent recurrence, towhich the temp- 
tation was stronger, and of which the mis- 
chief was more extensive, constituted the 
great motive for imposing this restriction on 
the state legislatures. But althougli a par- 
ticular and a rare case may not, in itself, be 
of sufficient magnitude to induce a rule, yet 
it must be governed by the rule, when estal)- 
lished, unless some plain and strong reasoit 
for excluding it can be given. It is not 
enough to say, that this particular case was 
not in the mind of the convention, when the 
article was framed, nor of the American peo- 
ple, when it was adopted. It is necessary 
to go furtlier, and to say that, had this par- 
ticular case been suggested, the language 
would have been so varied as to exclude it, 
or it would have been made a special excep- 
tion. The case being within the words of 
the rule, must be within its operation like- 
wise, unless there be something in the lit- 
eral construction so oliviously absurd or mis- 
chievous, or repugnant to the general spirit 
of the instrument, as to justify those who 
expound the constitution in making it an ex- 
ception. 

On what safe and intelligil)le ground can 
this exception stand? Tliere is no expres- 
sion in the constitution, no sentiment de- 
livered by its contemporaneous expounders, 
which would justify us in making it. In 
the absence of all authority of this kind, is 
there, in the nature and reason of the case 
itself, that which would sustain a construc- 
tion of the constitution, not warranted by its 
words? Are conti-acts of this description of 
a character to excite so little interest, that 
we mixst exclude them from the provisions 
of the constitution, as being unworthy of the 
attention of those wlio framed the instru- 
ment? Or does piiblic policy so imperiously 
demand their remaining exposed to legisla- 
tive alteration, as to compel us, or i-ather 
permit us to say, that these words, Avhich 



208 



LA^^S IMPAIKING THE OBLIGATION OF CONTRACTS. 



were introduced to give stability to con- 
tracts, and whicli, in tlieir plain import, 
conipreliend this contract, must yet be so 
construed as to exchide it? 

Almost all eleemosynary corporations, 
those which are created for the promotion of 
religion, of cliarity, or of education, ai"e of 
the same character. The law of this case 
is the law of all. In evei-y literary or char- 
itable institution, unless the objects of the 
bounty be themselves incorporated, the 
Avhole legal interest is in trustees, and can 
be asserted only by them. The donors, or 
claimants of the bounty, if they can appear 
in court at all, can appear only to complain 
of the trustees. In all other situations, they 
are identified Avith, and personated by, the 
trustees; and their rights are to be defended 
and maintained by them. Religion, charity, 
and education, are, in the law of England, 
legatees or donees, capable of receiving be- 
quests or donations in tliis form. They ap- 
pear in court, and claim or defend by the 
corporation. Are tliey of so little estima- 
tion in the United States, that contracts for 
their benefit must be excluded from the pro- 
tection of words Avhich, in their natural im- 
port, include them? Or do such contracts 
so necessarily require new modelling, by 
the authority of the legislature, that the or- 
dinary rules of construction must be disre- 
garded in order to leave them exposed to leg- 
islative alteration? 

All feel that these objects are not deemed 
unimportant in the United States. The in- 
terest which this case has excited, proves 
that they are not. The framers of the con- 
stitution did not deem them unworthy of its 
care and protection. They have, though in 
a different mode, manifested their respect 
for science, by reserving to tlie government 
of the Union the power "to promote the 
progress of science and useful arts, by se- 
curing, for limited times, to authors and in- 
ventors, the exclusive right to their respec- 
tive writings and discoveries." They have, 
so far, withdrawn science and the useful 
arts, from the action of the state govern- 
ments. Wliy, tlien, should they be supposed 
regardless of contracts made for the advance- 
ment of literature, as to intend to exclude 
them from provisions, made for the security 
of ordinary contracts between man and man? 
No reason for making this supposition is per- 
ceived. 

If tlie insignificance of the object does not 
require that we should exclude contracts re- 
specting it from the protection of the consti- 
tution, neither, as we conceive, is the policy 
of leaving them subject to legislative altera- 
tion, so apparent as to require a forced con- 
struction of that instrument in order to effect 
it. These eleemosynary institutions do not 
fill the place which would otherwise be oc- 
cupied by government, but that which would 
otherwise remain vacant. They are com- 
plete acquisitions to literature. They are 
donations to education; donations, which any 



goverament must be disposed rather to en- 
courage than to discountenance. It requires 
no veiy critical examination of the human 
mind, to enable us to determine, that one 
great inducement to these gifts is the con- 
viction felt by the giver, that the disposition 
he makes of them is immutable. It is prob- 
able, that no man ever Avas, and that no 
man ever will be, the founder of a college, 
believing at the time, that an act of incor- 
poration constitutes no security for the insti- 
tution; believing, that it is immediately to 
be deemed a public institution, whose funds 
are to be governed and applied, not by the 
will of the donor, but by 1,he will of the 
legislature. All such gifts are made in the 
pleasing, perhaps delusive hope, that the 
charity AA'ill floAv forever in the channel AA'bich 
the givers have marked out for it. If every 
man finds in his oAvn bosom strong CA-idence 
of the uniA'ersality of this sentiment, there 
can be but little reason to imagine that the 
framers of our constitution Avere strangers 
to it, and that, feeling the necessity and pol- 
icy of giving permanence and security to 
contracts, of withdraAviug them from the in- 
fiuence of legislative bodies, Avhose fluctuat- 
ing policy and repeated interferences pro- 
duced the most perplexing and injurious em- 
barrassments, they still deemed it necessary 
to leave these contracts subject to those in- 
terferences. The motives for such an ex- 
ception must be very powerful, to justify 
the construction AA'hich makes it. 

The motives suggested at the bar, grow 
out of the original appointment of the trus- 
tees, which is supposed to haA'e been in a 
spirit hostile to the genius of our govern- 
ment, and the presumption, that, if alloAved 
to continue themselves, they now are, and 
must remain forever, Avhat they originally 
were. Hence is inferred the necessity of ap- 
plying to this corporation, and to other sim- 
ilar corporations, the correcting and improv- 
ing hand of the legislatiire. 

It has been urged repeatedly, and certain- 
ly Avith a degree of earnestness which at- 
tracted attention, that the trustees, deriving 
their poAver from a regal source, must, nec- 
essarily, partake of the spirit of their origin; 
and that their first principles. unimproA^ed 
by that resplendent light Avhich has been 
slied around them, must continue to govern 
the college, and to guide tlie students. Be- 
fore Ave inquire into the influence Avhich this 
argument ought to have on the constitution- 
al question, it may not be amiss to examine 
the fact on which it rests. The first trus- 
tees AA'ere undoubtedly named in the char- 
ter by the croAvn; but at Avhose suggestion 
Avere they named? By whom AA'ere they se- 
lected? The charter informs us. Dr. Wheelock 
had represented, "that, for many Aveighty 
reasons, it Avould be expedient, that the gen- 
tlemen Avhom he had already nominated, in 
his last Avill, to be trustees in America, 
should be of the corporation noAV proposed." 
When, afterAvards, the trustees are named 



CHARTERS AS C02s TRACTS. 



209 



in the charter, can it be doubted that the 
persons mentioned by Dr. Wheelock, in liis 
Avill, were appointed? Some were probably 
added bj^ the crown, with the approbation of 
Dr. Wheelock. Among these is tlie doctor 
liimself. If any others were appointed at 
the instance of the crown, they are the gov- 
ernor, three members of tlie council, and the 
spealcer of the house of representatives, of 
the colony of New Hampshire. The stations 
filled by these persons ought to rescue them 
from any other imputation than too great a 
dependence on the crown. If, in the Revo- 
lution that followed, they acted under the 
influence of this sentiment, they must have 
ceased to be trustees; if they took part with 
their countrymen, the imputation which sus- 
picion might excite, would no longer attach 
to them. The oi-iginal trustees, then, or 
most of them, were named by Dr. Whee- 
lock, and those who were added to his nom- 
ination, most probably with his approbation, 
were among the most eminent and respecta- 
ble individuals in New Hampshire. 

The only evdence which we possess of the 
character of Dr. Wheelock, is furnished by 
this charter. The judicious means employed 
for the accomplishment of his object, and the 
success which attended his endeavors, would 
lead to the opinion, that he united a sound 
understanding to that humanity and benev- 
olence which suggested his undertaking. It 
surely cannot be assumed, that his trustees 
were selected without judgment. With as 
little probability can it be assumed, that, 
while the light of science and of liberal prin- 
ciples pervades the whole community, these 
originally benighted trustees remain in utter 
darkness, incapable of participating in the 
general improvement; that, while the human 
race is rapidly advancing, they are station- 
ary. Reasoning a priori, we should believe 
that learned and intelligent men, selected by 
its patrons for the government of a literary 
institution, would select learned and intelli- 
gent men for their successors; men as well 
fitted for the government of a college as 
those who might be chosen by other means. 
Should this reasoning ever prove erroneous in 
a particular case, public opinion, as has been 
stated at the bar, would correct the institu- 
tion. The mere possibility of the coutrai-j- 
would not justify a construction of the con- 
stitution, which should exclude these con- 
tracts from the protection of a provision 
whose terms comprehend them. 

The opinion of the court, after mature de- 
liberation, is, that this is a contract, the ob- 
ligation of which cannot be impaired, with- 
out violating the constitution of the United 
States. This opinion appears to us to be 
equally supported by reason, and by the for- 
mer decisions of this court. 

2. We next proceed to the inquiry, whether 
its obligation has been impaired by those 
acts of the legislature of New Hampshire, to 
which the special verdict refers. 

From the review of this charter, which has 

SMITH, CONST. LAW — 14 



been taken, it appears that the whole power 
of governing the college, of appointing and 
removing tutors, of fixing their salaries, of 
directing the course of study to be pursued 
by the students, and of filling up vacancies 
created in their own body, was vested in the 
trustees. On the part of the crown, it was 
expressly stipulated that this corporation, 
thus constituted, should continue forever; 
and that the number of trustees should for- 
ever consist of twelve, and no more. By this 
contract, the crown was bound, and could 
have made no violent alteration in its essen- 
tial terms, without impairing its obligation. 

By the Revolution, the duties as well as the 
powers of government devolved on the people 
of New Hampshire. It is admitted, that 
among the latter was comprehended the tran- 
scendent power of parliament, as Avell as that 
of the executive department. It is too clear 
to require the support of argument, that all 
contracts and rights, respecting property, re- 
mained unchanged by the Revolution. The 
obligations, then, which were created by the 
charter to Dartmouth College, were the same 
in the new that they had been in the old gov- 
ernment. The power of the government was 
also the same. A repeal of this charter at 
any time prior to the adoption of the present 
constitution of the United States, would have 
been an extraordinary and unprecedented act 
of power, but one which could have been con- 
tested only by the restrictions upon the leg- 
islature, to be found in the constitution of 
the state. But the constitution of the United 
States has imposed this additional limitation, 
that the legislature of a state shall pass no 
act "impairing the obligation of contracts." 

It has been already stated, that the act "to 
amend the charter, and enlarge and improve 
the corporation of Dartmouth College," in- 
creases the number of trustees to twenty-one, 
gives the appointment of the additional mem- 
bers to the executive of the state, and creates 
a board of overseers, to consist of twenty-five 
persons, of whom twenty-one are also ap- 
pointed by the executive of New Hampshire, 
who have power to inspect and control the 
most important acts of the trustees. 

On the effect of this law, two opinions can- 
not be entertained. Between acting directly, 
and acting through the agency of trustees 
and overseers, no essential difference is per- 
ceived. The wnole power of governing the 
college is transferred from trustees, appointed 
according to the will of the founder, express- 
ed in the charter, to the executive of New 
Hampshire. The management and applica- 
tion of the funds of this eleemosynary insti- 
tution, Avhich are placed by the donors in the 
hands of trustees named in the charter, and 
empowered to peiijetuate themselves, are 
placed by this act under the control of the 
government of the state. The will of the 
state is substituted tor the will of the donors, 
in every essential operation of the college. 
This is not an immaterial change. The 
founders of the college contracted, not mere- 



210 



LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. 



ly for the perpetual application of the funds 
which they gave, to the objects for which 
those funds were given, they contracted also, 
to secure that application by the constitution 
of the corporation. They contracted for a 
system, whici^ should, as far as human fore- 
sight can provide, retain forever the govern- 
ment of the literary institution they had 
formed, in the hands of persons approved by 
themselves. This system is totally changed. 
The charter of ITGD exists no longer. It is 
reorganized; and reorganized in such a man- 
ner, as to convert a literary institution, 
moulded a(;cording to the will of its found- 
ers, and placed under the control of private 
literary men, inco a machine entirely sub- 
servient to the will of government. This may 
be for the advantage of this college in par- 
ticular, and may be for the advantage of lit- 
erature in general; but it is not according to 
the will of the donors, and is subversive of 
that contract, on the faith of which their 
property was given. 

In the view which has been taken of this 
interesting case, the court has confined itself 
to the rights possessed by the trustees, as the 
assignees and representatives of the donors 
and founders, for the benetit of religion and 
literature. Yet it is not clear, that the trus- 
tees ought to be considered as destitute of 
such benelicial interest in themselves, as the 
law may respect. In addition to their be- 
ing the legal owners of the property, and to 
their having a freehold right in the powers 
confided to them, the charter itself counte- 
nances the idea that trustees may also be 
tutors, with salaries. The first president was 
one of the original trustees; and the charter 
provides, that in case of vacancy in that of- 
fice, "the senior professor or tutor, being one 



of the trustees, shall exercise the office of 
president, until the trustees shall make choice 
of. and appoint a president." According to 
the tenor of the charter, then, the trustees 
might, without impropriety, appoint a presi- 
dent and othei- professors from their own 
body. This is a power not entirely uncon- 
nected with an interest. Even if the propo- 
sition of the counsel for the defendant were 
sustained; if it were admitted, that those 
contracts only are protected by the constitu- 
tion, a beneficial interest in which is vested 
in the party who appears in court to assert 
that interest; yet it is by no means clear, that 
the trustees of Dartmouth College have no 
beneficial interest in themselves. 

But the court has deemed it unnecessary to 
investigate this particular point, being of 
opinion, on general principles, that in these 
private eleemosynary institutions, the body 
corpoi-ate, as possessing the whole legal and 
equitable interest, and completely represent- 
ing the donors, for the purpose of execut- 
ing the trust, has rights rvhich are protected 
by the constitution 

It results from this opinion, that the acts of 
the legislature of New Hampshire, which are 
stated in the special verdict found in this 
cause, are repug.iant to the constitution of 
the United States; and that the judgment on 
this special verdict ought to have been for 
the plaintiflis. The judgment of the state 
court must, therefore, be reversed. 



Mr. Justice WASHIX(rrON, Mr. Justice 
STORY, and Mr. Justice LIVINGSTON con- 
curred. 



Mr. Justice DUVALL dissents. 



CHARTERS AS CONTRACTS. 



211 



STONE et al. v. MISSISSIPPI. 

(101 U. S. 814.) 

Supreme Court of the United States. Oct., 
1879. 

Error to the supreme court of the state of 
Mississippi. 

This was a proceeding in the nature of quo 
warranto instituted in a court of the state 
of Mississippi by the attorney-general against 
John B. Stone and others, carrying on a lot- 
tery or gift enterprise under the name of 
the Mississippi Agricultural, Educational, 
and Manufacturing Aid Society. There was 
a judgment for plaintiff, which was affirmed 
toy the supreme court of Mississippi, and de- 
fendants brought error. Affirmed. 

Philip Phillips, for plaintiffs in error. A. 
M. Clayton and Van H. Manning, for defend- 
ant in error. 

Mr. Chief Justice WAITE delivered the 
opinion of the court. 

It is now too late to contend that any con- 
tract which a state actually enters into when 
granting a charter to a private corporation 
is not within the protection of the clause in 
the constitution of the United States that pro- 
hibits states from passing laws impairing 
the obligation of contracts. Article 1, § 10. 
The doctrines of Trustees of Dartmouth Col- 
lege V. Woodward, 4 Wheat. 518, announced 
by this court more than sixty years ago, 
have become so imbedded in the jurispru- 
dence of the United States as to make them 
to all intents and pui-poses a part of the con- 
stitution itself. In this connection, however, 
it is to be kept in mind that it is not the 
charter which is protected, but only any con- 
tract the charter may contain. If there is 
no contract, there is nothing in the grant on 
which the constitution can act. Consequent- 
ly, the first inquiry in this class of cases al- 
ways is, whether a contract has in fact been 
entered into, and if so, what its obligations 
are. 

In the present case the question is wheth- 
er the state of Mississippi, in its sovereign 
capacity, did by the charter now under con- 
sideration bind itself irrevocably by a con- 
tract to permit "the Mississippi Agricultural, 
Educational, and Manufacturing Aid Socie- 
ty," for twenty-five years, "to receive sub- 
scriptions, and sell and dispose of certificates 
of subscription which shall entitle the hold- 
ers thereof to" "any lands, books, paintings, 
antiques, scientific instruments or apparatus, 
or any other property or thing that may be 
ornamental, valuable, or useful," "awarded 
to them" "by the casting of lots, or by lot, 
chance, or otherwise." There can be no dis- 
pute but that under this form of words the 
legislature of the state chartered a lottery 
company, having all the powers incident to 
such a coiTporation, for twenty-five years, and 
that in consideration thereof the company 
paid into the state treasury $5,000 for the use 



of a university, and agreed to pay, anu until 
the commencement of this suit did pay, an 
annual tax of $1,000 and "one-half of one 
per cent on the amount of receipts derived 
from the sale of certificates or tickets." If 
the legislature that granted this charter had 
the power to bind the people of the state and 
all succeeding legislatures to allow the corpo- 
ration to continue its corporate business dur- 
ing the whole term of its authorized exist- 
ence, there is no doubt about the sufficiency 
of the language employed to effect that ob- 
ject, although there was an evident purpose 
to conceal the vice of the transaction by the 
phrases that were used. Whether the alleged 
conti-act exists, therefore, or not, depends on 
the authority of the legislature to bind the 
state and the people of the state in that way. 

All agree that the legislature cannot bar- 
gain away the police power of a state. "Ir- 
revocable grants of property and franchises 
may be made if they do not impair the su- 
preme authority to make laws for the right 
government of the state; but no legislature 
can curtail the power of its successors to 
make such laws as they may deem proper in 
matters of police." Board of Excise v. Bar- 
rie, 34 N. Y. 657; Boyd v. Alabama, 94 U. 
S. 645. Many attempts have been made in 
this court and elsewhere to define the police 
power, but never with entire success. It is 
always easier to determine whether a partic- 
ular case comes within the general scope of 
the power, than to give an abstract definition 
of the power itself which will be in all re- 
spects accurate. No one denies, however, 
that it extends to all matters affecting the 
public health or the public morals. Beer 
Co. V. Massachusetts, 97 U. S. 25; I'atterson 
V. Kentucky, Id. 501. Neither can it be de- 
nied that lotteries are proper subjects for 
the exercise of this power. We are aware 
that formerly, when the sources of public 
revenue were fewer than now, they were 
used in some or all of the states, and even 
in the District of Columbia, to raise money 
for the erection of public buildings, making 
public improvements, and not unfrequently 
for educational and religious purposes; but 
this court said, more than thirty years ago, 
speaking through Mr. Justice Grier, in Pha- 
len V. Virginia, 8 How. 163, 168, that "expe- 
rience has snown that the common forms of 
gambling are comparatively innocuous when 
placed in contrast with the wide-spread pes- 
tilence of lotteries. The former are confined 
to a few persons and places, but the latter in- 
fests the whole community; it enters every 
dwelling; it reaches every class; it preys 
upon the hard earnings of the poor; and it 
plunders the ignorant and simple." Happi- 
ly, under the influence of restrictive legisla- 
tion, the evils are not so apparent now; but 
we very much fear that with the same op- 
portunities of indulgence the same results 
would be manifested. 

If lotteries are to be tolerated at all, it is 
no doubt better that they should be regu- 



212 



LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. 



lated by law. so that the people may be pi"o- 
tected as far as possible against the inherent 
vices of the system; but that they are de- 
moralizing in their effects, no matter how 
carefully regulated, cannot admit of a doubt. 
When the government is untrammeled by 
any claim of vested lights or chartered priv- 
ileges, no one lias ever supposed that lotter- 
ies could not lawfully be suppressed, and 
those who manage them punished severely as 
violators of the rules of social morality. 
From 1822 to 1867, without any constitution- 
al requirement, they were prohibited by law 
in Mississippi, and those who conducted them 
punished as a kind of gamblers. During the 
provisional government of that state, in 1867, 
at the close of the late civil war, the present 
act of incorporation, with mce of like char- 
acter, was passed. The next year, 1868, the 
people, in adopting a new constitutiou with 
a view to the resumption of their political 
rights as one of the United States, provided 
that "the legislature shall never authorize 
any lottery, nor shall the sale of lottery-tick- 
ets be allowed, nor shall any lottery hereto- 
fore authorized be permitted to be drawn, or 
tickets therein to be sold." Article 12, § 15. 
There is now scarcely a state in the Union 
where lotteries are tolerated, and congress 
has enacted a special statute, the object of 
which is to close the mails against them. 
Rev. St. § 3894 (19 Stat. 90, § 2). 

The question is therefore directly present- 
ed, whether, in view of these facts, the leg- 
islature of a state can, by the charter of a 
lottery company, defeat the will of the peo- 
ple, authoritatively expressed, in relation to 
the further continuance of such business in 
their midst. We think it cannot. No legis- 
lature can bargain away the public health 
or the public morals. The people themselves 
cannot do it, much less their servants. The 
supervision of both these subjects of govern- 
mental power is continuing in its nature, 
and they are to be dealt with as the special 
exigencies of the moment may require. Gov- 
ernment is organized with a view to their 
preservation, and cannot divest itself of the 
power to provide for them. For this purpose 
the largest legislative discretion is allowed, 
and the discretion cannot be parted with any 
more than the power itself. Beer Co. v. 
Massachusetts, supra. 

In Dartmouth College v. Woodward, 4 
Wheat. 518, it was argued that the contract 
clause of the constitution, if given the effect 
contended for in respect to corporate fran- 
chises, "would be an unprofitable and vexa- 
tious interference with the internal concerns 
of a state, would unnecessarily and unwisely 
embarrass its legislation, and render immuta- 
ble those civil institutions which are estab- 
lished for the purpose of internal govern- 
ment, and which, to subserve those purposes, 
ought to vary with varying circumstances" 
(page 628); but Mr. Chief Justice Mai-shall, 
when he announced the opinion of the court, 
was careful to say (page 629) "that the fram- 



ers of the constitutiou did not intend to re- 
strain states in the regulation of their civil 
institutions, adopted for internal government, 
and that the instrument they have given us 
is not to be so construed." The present case, 
we think, comes within this limitation. We 
have held, not, however, without strong op- 
position at times, that this clause protected 
a corporation in its charter exemptions from 
taxation. While taxation is in general nec- 
essary for the support of government, it is 
not part of the government itself. Govern- 
ment was not organized for the purposes of 
taxation, but taxation may be necessary for 
the purposes of government. As such, taxa- 
tion becomes an incident to the exercise of 
the legitimate functions of government, but 
nothing more. No government dependent on 
taxation for supix)rt can bargain away its 
whole power of taxation, for that would be 
substantially abdication. All that has been 
determined thus far is, that for a considera- 
tion it may, in the exercise of a reasonable 
discretion, and for the public good, surren- 
der a part of its powers in this particular. 

But the power of governing is a trust com- 
mitted by the people to the government, no 
part of which can be granted away. The 
people, in their sovereign capacity, have es- 
tablished their agencies for the preservation 
of the public health and the public moi"als, 
and the protection of public and private 
rights. These several agencies can govern 
according to their discretion, if within the 
scope of their general authority, while in 
power; but they cannot give away nor sell 
the discretion of those that are to come aicer 
them, in respect to matters the government 
of which, from the very nature of things, 
must "vary with varying circumstances." 
They may create corporations, and give 
them, so to speak, a limited citizenship; but 
as citizens, limited in their privileges, or oth- 
erwise, these creatures of the government 
creation are subject to such rules and regu- 
lations as may from time to time be ordained 
and established for the preservation of health 
and morality. 

The contracts which the constitution pro- 
tects are those that relate to property rights, 
not governmental. It is not always easy to 
tell on which side of the line which separates 
governmental from property i-ights a partic- 
ular case is to be put; l)ut in respect to lot- 
teries there can be no difliculty. They are 
not, in the legal acceptation of the term, ma- 
la in se, but, as we have just seen, may prop- 
erly be made mala prohibita. They are a 
species of gambling, and wrong in their in- 
fluences. They disturb the checks and bal- 
ances of a well-ordered community. Society 
built on such a foundation would almost of 
necessity bring forth a population of specu- 
lators and gamblei*s, living on the expecta- 
tion of what, "by the casting of lots, or by 
lot, chance, or otherwise," might be "award- 
ed" to them from the accumulations of oth- 
ers. Certainly the right to suppress them is 



CHARTERS AS CONTRACTS. 



213 



governmental, to be exercised at all times 
by those in power, at their discretion. Any 
one, therefore, who accepts a lottery charter 
does so with the implied understanding that 
the people, in their sovereign capacity, and 
through their properly constituted agencies, 
may resume it at any time when the public 
good shall require, whether it be paid for or 
not. All that one can get by such a charter 
Ls a suspension of certain governmental 



rights in his favor, subject to withdrawal at 
will. He has in legal effect nothing more 
than a license to enjoy the privilege on the 
terms named for the specified time, unless it 
be sooner abrogated by the sovereign power 
of the state. It is a permit, good as against 
existing laws, but subject to future legisla- 
tive and constitutional control or withdrawal. 
On the whole, we find no error in the rec- 
ord. Judgment affirmed. 



214 



EX POST FACTO LAWS. 



Ex parte GARLAND. 

(4 Wall. 333.) 

Supreme Court of the United States. Dec, 
18G6. 

This was a petition by A. H. Garland to 
the supreme court of the United States, 
asking permission to continue to practice 
as an attorney and counsellor of the court 
without taking the oath of offtce prescribed 
by Act Cong. Jan. 24, 1S65, and the rule 
of court adopted pursuant thereto. Grant- 
ed. 

Reverdy Johnson, R. H. :Marr. and M. H. 
Carpenter, for the petitioner, Mr. Garland. 

Mr. Justice FIELD delivered the opinion 
of the court. 

On the second of July, 18(>2, congress 
passed an act prescribing an oath to be 
taken by every person elected or appointed 
to any office of honor or profit under the 
government of the United States, either in 
the civil, militaiy, or naval department of 
the public service, except the president, be- 
fore entering upon the duties of his office, 
and before being entitled to its salary, or 
other emoluments. On the 24th of Jan- 
uary, 18G5, congress, by a supplementary 
act, extended its pi'ovisions so as to em- 
brace attorneys and counsellors of the 
courts of the United States. This latter act 
provides that after its passage no person 
shall be admitted as an attorney and coun- 
sellor to the bar of the supreme court, and, 
after the foiu-th of March, ISlJ-j, to the bar 
of any circuit or district court of the 
United States, or of the court of claims, 
or be allowed to appear and be heard by 
virtue of any previous admission, or any 
special power of attorney, unless he shall 
have first taken and subscribed the oath 
prescribed by the act of July 2d, 18(j2. It 
also provides that the oath shall be pre- 
served among the files of the court; and 
if any person take it falsely he shall be 
guilty of perjury, and, upon conviction, shall 
be subject to the pains and penalties of that 
offence. 

At the December term, 18G0, the petition- 
er was admitted as an attorney and coun- 
sellor of this court, and took and sub- 
scribed the oath then required. By the 
second rale, as it then existed, it was only 
requisite to the admission of attorneys and 
counsellors of this court, that they should 
have been such officers for the three pre- 
vious years in the highest courts of the 
states to which they respectively belonged, 
and that their private and professional 
character should appear to be fair. 

In March, 1865, this rule was changed by 
the addition of a clause requiring the ad- 
ministration of the oath, in conformity with 
the act of congress. 

In May, 1861, the state of Arkansas, of 



which the petitioner was a citizen, passed 
an ordinance of secession, which purported 
to withdraw the state from the Union, and 
afterwards, in the same year, by another 
ordinance, attached herself to the so-ialled 
Confederate States, and by act of the con- 
gress of that Confederacy was received as 
one of its members. 

The petitioner followed the state, and 
was one of her i-epreseutatives — first in the 
lower house, and afterwards in the senate, 
of the congress of that Confederacy, and 
was a member of the senate at the time of 
the surrender of the Confederate forces to 
the armies of the United States. 

In July, 1865, he received from the pres- 
ident of the United States a full pardon for 
all offences committed by his parti-cipation, 
direct or implied, in the Rebellion. He 
now produces his pardon, and asks permis- 
sion to continue to practise as an attorney 
and counsellor of the court without taking 
the oath required by the act of January 
24th, 1865, and the rule of the court, which 
he is unable to take, by reason of the of- 
fices he held under the Confedei^ate gov- 
ernment. He rests his application prin- 
cipally upon two gi'ounds: 

1st. That the act of January 24th, 18(35, 
so far as it affects his status in the court, 
is unconstitutional and void; and, 

2d. That, if the act be constitutional, he is 
released from compliance with its provi- 
sions by the pardon of the president. 

The oath prescribed by the act is as fol- 
lows: 

1st. That the deponent has never voluntari- 
ly borne arms against the United States 
since he has been a citizen thereof; 

2d. That he has not voluntarily given aid, 
countenance, counsel, or encouragement tb 
persons engaged in armed hostility thereto; 

3d. That he has never sought, accepted, 
or attempted to exercise the functions of 
any office whatsoever, under any authority, 
or pretended authority, in hostility to the 
United States; 

4th. That he has not yielded a voluntary 
support to any pretended government, au- 
thority, power, or constitution, within the 
United States, hostile or inimical thereto; 
and, 

5th. That he will support and defend the 
constitution of the United States against all 
enemies, foreign and domestic, and will 
bear true faith and allegiance to the same. 

This last clause is promissory only, and 
requires no consideration. The questions 
presented for our determination arise from 
the other clauses. These all relate to past 
acts. Some of these acts constituted, when 
they were committed, offences against the 
criminal laws of the country; others may, 
or may not, have been offences according 
to the circumstances under which they were 
committed, and the motives of the parties. 
The first clause covers one form of the 



YALIDITY OF EX POST FACTO STATUTES. 



215 



crime of treason, and the deponent must 
dec-lare that lie has not been guilty of this 
crime, not only during the war of the Re- 
bellion, but during any period of his life 
since he has been a citizen. The second 
clause goes beyond the limits of treason, 
and embraces not only the giving of aid 
and encouragement of a treasonable nature 
to a public enemy, but also the giving of 
assistance of any kind to persons engaged 
in armed hostility to the United States. 
The third clause applies to the seeking, ac- 
ceptance, or exercise not only of offices cre- 
ated for the purpose of more effectually 
carrying on hostilities, but also of any of 
those offices which are required in every 
community, whether in peace or war, for 
the administration of justice and the preser- 
vation of order. The fourth clause not on- 
ly includes those Avho gave a cordial and 
active support to the hostile government, 
but also those who yielded a reluctant obedi- 
ence to the existing order, established with- 
out their co-operation. 

The statute is directed against parties 
who have offended in any of the particulars 
embraced by these clauses. And its object 
is to exclude them from the profession of 
the law, or at least from its practice in the 
courts of the United States. As the oath 
prescribed cannot be taken by these par- 
ties, the act, as against them, operates as 
a legislative decree of perpetual exclusion. 
And exclusion from any of the professions 
or any of the ordinary avocations of life for 
past conduct can be regarded in no other 
light than as punishment for such conduct. 
The exaction of the oath is the mode pro- 
* vided for ascertaining the parties upon 
whom the act is intended to operate, and 
instead of lessening, increases its objec- 
tionable character. All enactments of this 
kind partake of the nature of bills of pains 
and penalties, and are subject to the con- 
stitutional inhibition against the passage of 
bills of attainder, under which general des- 
ignation they are included. 

In the exclusion which the statute ad- 
judges it imposes a punishment for some 
of the acts specified which were not pun- 
ishable at the time they were committed; 
and for other of the acts it adds a new pun- 
ishment to that before prescribed, and it is 
thus brought within the further inhibition 
of the constitution against the passage of 
an ex post facto law. In the case of Cum- 
mings V. State (just decided) 4 Wall. 316, 
we have had occasion to consider at length 
the meaning of a bill of attainder and of an 
ex post facto law in the clause of the con- 
stitution forbidding their passage by the 
states, and it is unnecessary to repeat hei-e 
what we there said. A like prohibition is 
contained in the constitution against enact- 
ments of this kind by congress; and the 
argument presented in that case against 
certain clauses of the constitution of Mis- 



souri is equally applicable to the act of 
congress under consideration in this case. 

The profession of an attorney and coun- 
sellor is not like an office created by an act 
of congress, which depends for its con- 
tinuance, its powers, and its emoluments 
upon the will of its creator, and the pos- 
session of which may be burdened with any 
conditions not prohibited by the constitu- 
tion. Attorneys and counsellors are not of- 
ficers of the United States; they are not 
elected or appointed in the manner pre- 
scribed by the constitution for tlie election 
and appointment of such officers. They are 
officers of the court, admitted as such by 
its order, upon evidence of their possessing 
sufficient legal learning and fair private 
character. It has been the general practice 
in this country to obtain this evidence by 
an examination of the parties. In this court 
the fact of the admission of such officers 
in the highest court of the states to which 
they respectively belong, for three years pre- 
ceding their application, is regarded as suf- 
ficient evidence of the possession of the 
requisite legal learning, and th^ statement 
of counsel moving their admission sufficient 
evidence that their private and professional 
character is fair. The order of admission 
is the judgment of the court that the parties 
possess the requisite qualifications as at- 
torneys and counsellors, and are entitled to 
appear as such and conduct causes therein. 
From its entry the parties become officers 
of the court, and are responsible to it for 
professional misconduct. They hold their 
office during good behavior, and can only be 
deprived of it for misconduct ascertained 
and declared by the judgment of the court 
after opportunity to be heard has been af- 
forded. Ex parte Heyfron, 7 How. (Miss.) 
127; Fletcher v. Daingerfield, 20 Cal. 430. 
Their admission or their exclusion is not 
the exercise of a mere ministerial power. 
It is the exercise of judicial power, and 
has been so held in numerous cases. It 
was so held by the court of appeals of 
New York in Re Application of Cooper for 
Admission, 22 N. Y. 81. "Attorneys and 
counsellors," said that court, "are not only 
officers of the court, but officers whose 
duties relate almost exclusively to proceed- 
ings of a judicial nature. And hence their 
appointment may, with propriety, be in- 
ti-usted to the courts, and the latter in per- 
foi-ming this duty may very justly be con- 
sidered as engaged in the exercise of their 
appropriate judicial functions." 

In Ex parte Secoml>e, 19 How. 9, a man- 
damus to the supreme court of the territory 
of Minnesota to vacate an order removing 
an attorney and counsellor was denied by 
this court, on the ground that the removal 
was a judicial act. "We are not aware of 
any case," said the court, "where a manda- 
mus was issued to an inferior tribunal, 
commanding it to reverse or annul its de- 



216 



EX POST FACTO LAWS. 



cision, where the decision was in its na- 
ture a judicial act and within the scope of 
Its jurisdiction and discretion." And in the 
same case the court observed, that "it has 
been well settled by the rules and practice 
of common law courts, that it rests ex- 
clusively with the court to determine who 
is qualitied to become one of its officers, as 
an attorney and counsellor, and for what 
cause he ought to be removed." 

The attorney and counsellor being, by the 
solemn judicial act of the court, clothed 
with his office, does not hold it as a matter 
of grace and favor. The right which it 
confers upon him to appear for suitors, and 
to argue causes, is something more than a 
mere indulgence, revocable at the pleasure 
of th'e court, or at the command of the leg- 
islature. It is a right of which he can only 
be deprived by the judgment of the court, 
for moral or professional delinquency. 

The legislature may undoubtedlj' prescribe 
qualificatious for the office, to which he 
must conform, as it may, where it has ex- 
clusive jurisdiction, prescribe qualificatious 
for the pursuit of any of the ordinary avoca- 
tions of lite. The question, in this case, is 
not as to the power of congress to prescribe 
qualifications, but whether that power has 
been exercised as a means for the infliction 
of punishment, against the prohibition of 
the constitution. That this result cannot 
be effected indirectly by a state under the 
form of creating qualifications we have held 
in the case of Cummings v. State, 4 Wall. 
F>l(j, and the reasoning by which that con- 
clusion was reached applies equally to sim- 
ilar action on the part of congress. 

This view is strengthened by a considera- 
tion of the effect of the pardon produced by 
the petitioner, and the nature of the par- 
doning power of the president. 

The con.stitutiou provides that the presi- 
dent "shall have power to grant reprieves 
and pardons for offences against the United 
States, except in cases of impeachment." 
Article 2. § 2. 

The power thus conferred is unlimited, 
with the exception stated. It extends to 
every offence known to the law, and may be 
exercised at any time after its commission, 
either before legal proceedings are taken, or 
during their pendency, or after conviction 
and judgment. This power of the president 
is not subject to legislative control. Con- 
gress can neither limit the eifect of his par- 
don, nor exclude from its exercise any class 
of offenders. The benign prerogative of mer- 
cy reposed in him cannot be fettered by any 
legislative restrictions. 

Such being the case, the inquiry arises as 
to the effect and operation of a pardon, and 
on this point all the authorities concur. A 
pardon i-eaches both the punishment prescrib- 
ed for the offence and the guilt of the of- 
fender; and when the pardon is full, it re- 
leases the punishment and blots out of ex- 



istence the guilt, so that in the eye of the 
law the offender is as innocent as if he had 
never committed the offence. If granted be- 
fore conviction, it prevents any of the pen- 
alties and disabilities consequent upon con- 
viction from attaching; if granted after con- 
viction, it removes the penalties and disa- 
bilities, and restores him to all his civil 
rights; it makes him, as it were, a new man, 
and gives him a new credit and capacity. 

There is only this limitation to its opera- 
tion: it does not restore offices forfeited, or 
property or interests vested in others in 
consequence of the conviction and judgment. 
4 Bl. Comm. 402; 6 Bac. Abr. tit. "Pardon"; 
Hawkins, bk. 2, c. 37, §§ 34, 54. 

The pardon produced by the petitioner is a 
full pardon "for all offences by him commit- 
ted, arising from participation, direct or im- 
plied, in the Rebellion," and is subject to 
certain conditions which have been complied 
with. The effect of this pardon is to relieve 
the petitioner from all penalties and disabili- 
ties attached to the offence of treason, com- 
mitted by his participation in the Rebellion. 
So far as that offence is concerned, he is thus 
placed beyond the reach of punishment of 
any kind. But to exclude him, by reason 
of that offence, from continuing in the en- 
joyment of a previously acquired right, is to 
enforce a punishment for that oft"ence not- 
withstanding the pardon. If such exclusion 
can be effected by the exaction of an expur- 
gatory oath covering the offence, the pardon 
may be avoided, and that accomplished in- 
directly which cannot be reached by direct 
legislation. It is not within the constitu- 
tional power of congress thus to inflict pun- 
ishment beyond the reach of executive clem- 
ency. From the petitioner, therefore, the 
oath required by the act of January 24th, 
1865, could not be exacted, even if that act 
were not subject to any other objection than 
the one thus stated. 

It follows, from the views expressed, that 
the prayer of the petitioner must be granted. 

The case of R. H. Marr is similar, in its 
main features, to that of the petitioner, and 
his petition must also be granted. 

And the amendment of the second rule of 
the court, which requires the oath prescribed 
by the act of January 24th. 1865, to be taken 
by attorneys and counsellors, having been 
unadvisedly adopted, must be rescinded. 
And it is so ordei-ed. 

Mr. Justice MILLER delivered the follow- 
ing dissenting opinion, which applies also 
to the opinion delivered in Cummings v. 
State. 4 W\all. 316: 

I dissent from the opinions of the court 
just announced. 

It may be hoped that the exceptional cir- 
cumstances which give present imp<5rtance 
to these cases will soon pass away, and that 
those who make the laws, both state and 
national, will find in the conduct of the per- 



VALIDITY OF EX POST FACTO STATUTES. 



217 



sons affected by tbe legislation just declared 
to be void, sufficient reason to repeal, or es- 
sentially modify it. 

For the speedy return of that better spirit, 
which shall leave us no cause for such laws, 
all good men look with anxiety, and with a 
hope, I trust, not altogether unfounded. 

But the question involved, relating, as it 
does, to the right of tbe legislatures of the na- 
tion, and of the state, to exclude from offices 
and places of high public trust, the adminis- 
tration of whose functions are essential to the 
very existence of the government, those 
among its own citizens who have been en- 
gaged in a recent effort to destroy that gov- 
ernment by force, can never cease to be one 
of profound interest. 

It is at all times tbe exercise of an ex- 
tremely delicate power for this court to de- 
clare that the congress of the nation, or the 
legislative body of a state, has assumed an 
authority not belonging to it, and by violat- 
ing the constitution, has rendei'ed void its 
attempt at legislation. In the case of an 
act of congress, wliich expresses the sense 
of the members of a co-ordinate department 
of the government, as much bound by their 
oath of office as we are to respect that con- 
stitution, and whose duty it is, as much as it 
is ours, to be careful that no statute is pass- 
ed in violation of it, the incompatibility of 
the act with the constitution should be so 
clear as to leave little reason for doubt, be- 
fore we pronounce it to be invalid. 

Unable to see this incompatibility, either 
in the act of congress or in the provision of 
the constitution of Missouri, upon which this 
court has just passed but entertaining a 
strong conviction that both were within the 
■competency of the bodies which enacted 
them, it seems to me an occasion which de- 
mands that my dissent from the judgment 
of the court, and the reasons for that dis- 
sent, should be placed on its records. 

In the comments which I have to make 
upon these cases, I shall speak of principles 
equally applicable to both, although I shall 
refer more directly to that which involves 
the oath required of attorneys by the act 
of congress, reserving for the close some re- 
marks more especially applicable to the oath 
prescribed by the constitution of the state 
•of Missouri. 

The constitution of the United States makes 
ample provision for the establishment of 
courts of justice to administer her laws, 
and to protect and enforce the rights of her 
■citizens. Article 3, § 1, of that instrument, 
says that "the judicial power of the United 
States shall be vested in one supreme court, 
and such inferior courts as the congress may, 
from time to time, ordain and establish." 
Section 8 of article 1 closes its enumeration 
of the powers conferred on congress by the 
broad declaration that it shall have authority 
"to make all laws which shall be necessary 
and proper for canning into execution the 
foregoing powers, and all other powers vest- 



ed by the constitution in the government of 
the United States, or in any department 
thereof." 

Under these provisions, congress has or- 
dained and establisued circuit courts, dis- 
trict courts, and territorial courts; and has, 
by various statutes, fixed the number of the 
judges of the supreme court. It has limited 
and defined the jurisdiction of all these, and 
determined the salaries of the judges who 
hold them. It has provided for their neces- 
sary officers, as marshals, clerks, prosec\it- 
ing attorneys, bailiffs, commissioners, and 
jurors. And by the act of 1789, commonly 
called the judiciary act, passed by the first 
congress assembled under the constitution, 
it is among other things enacted, that "in all 
the courts of the United States the parties 
may plead and manage their causes personal- 
ly; or by the assistance of such counsel or 
attorneys-at-law as, by the rules of the said 
courts respectively, shall be permitted to 
manage and conduct causes therein." 

It is believed that no civilized nation of 
modern times has been without a class of 
men intimately connected with the courts, 
and with the administration of justice, called 
variously attorneys, counsellors, solicitoi"S, 
proctors, and othei terms of similar import. 
The enactment which we have just cited rec- 
ognizes this body of men, and their utility in 
the judicial system of the United States, and 
imposes upon the courts the duty of provid- 
ing rules, by which persons entitled to be- 
come members of this class, may be per- 
mitted to exercise the privilege of managing 
and conducting causes in these courts. They 
are as essential to the successful working of 
the courts, as the clerks, sheriffs, and mar- 
shals, and perhaps as the judges themselves, 
since no instance is known of a court of 
law without a bar 

The right to practise law in the courts as 
a profession, is a privilege granted by the 
law, under such limitations or conditions in 
each state or government as the law-making 
power may prescribe. It is a privilege, and 
not an absolute right. The distinction may 
be illustrated by the difference between the 
right of a party to a suit in court to defend 
his own cause, and the right of another to 
appear and defend for him. The one, like 
the right to life, liberty, and the pursuit of 
happiness, is inalienable. The other is the 
privilege conferred by law on a person who 
complies with the prescribed conditions. 

Every state in the Union, and every civ- 
ilized government, has laws by v>hich the 
right to practise in its courts maybe granted, 
and makes that right to depend on the good 
moral character and professional skill of the 
party on whom the privilege is conferred. 
This is not only true in reference to the first 
grant of license to pi-actise law, but the con- 
tinuance of the right is made, by these laws, 
to depend upon the continued possession of 
those qualities. 

Attorneys are often deprived of this right, 



>18 



EX POST FACTO LAWS. 



upon evidence of bad moral chai-acter, or 
specific acts of immorality or dishonesty, 
which show that they no longer possess the 
requisite qualifications. 

All this is done by law, either statutoi-y or 
common; and whether the one or the other, 
equally the expression of legislative will, for 
the common law exists in this country only 
as it is adopted or permitted by the legisla- 
tures, or by constitutions. 

No reason is perceived why this body of 
men, in their important relations to the 
courts of the nation, arc, not subject to the 
action of congi*ess, to the same extent that 
they are under legislative control in the 
states, or in any othei government; and to 
the same extent that the judges, clerks, mar- 
shals, and other officers of the court are sub- 
ject to congressional legislation. Having 
the power to establish the courts, to provide 
for and regulate the practice in those courts, 
to create their officers, and prescribe their 
functions, can it be doubted that congress 
has the full right to presc-ribe terms for the 
admission, rejection, and expulsion of attor- 
neys, and for requiring of them an oath, to 
show whether they have the proper qual- 
ifications for the discharge of their duties? 

The act which has just been declared to 
be unconstitutional is nothing more than a 
statute which requires of all lawyers who 
propose to practise in the national courts, 
that they shall take the same oath which is 
exacted of every officer of the government, 
civil or military. This oath has two aspects; 
one Avhich looks to the past conduct of the 
party, and one to his rutvu'e conduct; but 
both have reference to his disposition to sup- 
port or to overturn the government, in whose 
functions he proposes, to take part. In sub- 
stance, he is required to swear that he has 
not been guilty of treason to that govern- 
ment in the past, and that he will bear faith- 
ful allegiance to it in the future. 

That fidelity to the government under 
which he lives, a true and loyal attachment 
to it, and a sincere desire for its preserva- 
tion, are among the most essential qualifica- 
tions which should be required in a lawyer, 
seems to me to be too clear for argument. 
The history of the Anglo-Saxon race shows 
that, for ages past, the members of the legal 
profession have been powerful for good or 
evil to the government. They are. by the 
nature of their duties, the moulders of pub- 
lic sentiment on questions of government, 
and are every day engaged in aiding in the 
construction and enforcement of the laws. 
From among their numPers are necessarily 
selected the judges who expound the laws 
and the constitution. To suffer treasonable 
sentiments to spread here unchecked, is to 
permit the stream on which the life of the 
nation depends to be poisoned at its source. 

In illustration of this truth, I venture to 
affirm, that if all the members of the legal 
profession in the states lately in insurrec- 
tion had possessed the qualification of a 



loyal and faithful allegiance to the govern- 
ment, we should have been spared the hor- 
rors of that Rebellion. If, then, this quali- 
fication be so essential in a lawyer, it can- 
not be denied that the statute under consid- 
eration was eminently calculated to secure 
that result. 

The majority of this court, however, do 
not base their decisions on the mere absence 
of authority in congress, and in the states, 
to enact the laws which are the subject of 
consideration, but insist that the constitution 
of the United States forbids, in prohibitory 
terms, the passage of such laws, both to the 
congress and to the states. The provisions 
of that instrument, relied on to sustain this 
doctrine, are those which forbid congress and 
the states, respectively, from passing bills 
of attainder and ex post facto Unvs It is t-aid 
that the aet of congress, and the provision 
of the constitution of the state of Missouri 
under review, are in conflict with both these 
prohibitions, and are therefoi'e void. 

I will examine this proiwsition, in refer- 
ence to these two clauses of the constitution, 
in the order in which they occur in that in- 
strument. 

1. In regard to bills of attainder, I am not 
aware of any judicial decision by a court of 
federal jurisdiction which undertakes to give 
a definition of that term. We are therefore 
compelled to recur to the bills of jittainder 
passed by the English parliament, that we 
may learn so much of their peculiar charac- 
teristics, as will enable us to arrive at a 
sound conclusion, as to v/hat was intended 
to be prohibited by the constitution. 

The word "attainder" is derived, by Sir 
Thomas Tomlins, in his law dictionai'y, from 
the words "attincta" and "attinctura," and 
is defined to be "the stain or corruption of 
the blood of a criminal capitally condemned; 
the immediate inseparable consequence of 
the common law. on the pronouncing the sen- 
tence of death." The effect of this corrup- 
tion of the blood was, that the party attaint- 
ed lost all inheritable qtiality, and could nei- 
ther receive nor transmit any property or 
other rights by inheritance. 

This attainder or corruption of blood, as 
a consequence of judicial sentence of death, 
continued to be the law of England, in all 
cases of treason, to the time that our con- 
stitution was framed, and. for aught that is 
known to me, is the law of that country, on 
condemnation for treason, at this day. 

Bills of attainder, therefore, or acts of at- 
tainder, as they were called after they were 
passed into stattites, were laws which de- 
clared certain persons attainted, and their 
blood corrupted so that it had lost all herita- 
ble quality. Whether it declared other pun- 
ishment or not, it was an act of attainder 
if it declared this. This also seems to have 
been the main feature at which the authors 
of the constitution were directing their pro- 
hibition; for after having, in article 1, pro- 
hibited the passa4';e of bills of attainder — in 



YALIDITY or EX POST FACTO STATUTES. 



219 



section 9, to congress, and in section 10, to 
the states— there still remained to the ju- 
diciary the power of declaring attainders. 
Therefore, to still further guard against this 
odious form of punishment, it is provided, 
in section 3 of article 3, concerning the ju- 
diciary, that, while congress shall have pow- 
er to declare the punishment of treason, no 
attainder of ti'eason shall work corruption of 
blood or forfeiture, except during the life of 
the person attainted. 

This, however, while it was the chief, was 
not the only peculiarity of bills of attainder 
which was intended to be included within 
the constitutional restriction. Upon an at- 
tentive examination of the distinctive fea- 
tures of this kind of legislation, I think it 
will be found thav the following comprise 
those essential elements of bills of attainder, 
in addition to the one already mentioned, 
which distinguish them from other legisla- 
tion, and which made them so obnoxious to 
the statesmen who organized our govex*n- 
ment: 

1. They were ccnviciions and sentences 
pronounced by the legislative department of 
the government instead of the judicial. 

2. The sentence pronounced and the pun- 
ishment inflicted were determined by no pre- 
vious law or fixed rule. 

3. The investigation into the guilt of the 
accused, if any such were made, was not 
necessarily or generally conducted in his 
presence, or that of his counsel, and no rec- 
ognized rule of evidence governed the in- 
quiry. See Story, Const. § 1344. 

It is no cause for wonder that men who 
had just passed successfully through a des- 
perate struggle in behalf of civil liberty 
should feel a detestation for legislation of 
which these were the prominent features. 
The framers of our political system had a 
full appreciation of the necessity of keeping 
separate and distinct the primary depart- 
ments of the government. Mr. Hamilton, in 
the seventy-eighth number of the Federalist, 
says that he agrees with the maxim of 
Montesquieu, that "there is no liberty if the 
power of judging be not separated from the 
legislative and executive powers." And oth- 
ers of the ablest numbei's of that publication 
are devoted to the purpose of showing that 
in our constitution these powers are so just- 
ly balanced and restrained that neither will 
probably be able to make much encroach- 
ment upon the others. Nor was it less re- 
pugnant to their views of the security of 
personal rights, that any person should be 
condemned without a hearing, and punished 
without a law previously prescribing the na- 
ture and extent of that punishment. They 
therefore struck boldly at all this machinery 
of legislative despotism, by forbidding the 
passage of bills ot attainder and ex post 
facto laws, both to congress and to the states. 
It remains to inquire whether, in the act 
of congress under consideration (and the re- 
marks apply with equal force to the Mis- 



souri constitution), there is found any one 
of these features of bills of attainder; and 
if so, whether there is buflicient in the act 
to bring it fairly within the description of 
that class of bills. 

It is not claimed that the law works a cor- 
ruption of blood. It will, therefore, be con- 
ceded at once, that the act does not contaiu 
this leading feature oi bills of attainder. 

Nor am I capable of seeing that it contains 
a conviction or sentence of any designated 
person or persons. It is said that it is not 
necessary to a bill uf attainder that the party 
to be affected should be named in the act,, 
and the attainder of the Earl of Kildare and 
his associates is referred to as showing that 
the act was aimed at a class. It is very true 
that bills of attaindei have been passed 
against persons by some description, when 
their names were unknown. But in such 
cases the law leaves nothing to be done ta 
render its operation effectual, but to identify 
those persons. Their guilt, its nature, and 
its punishment are fixed by the statute, and 
only their personal identity remains to be 
made out. Such was the case alluded to. 
The act declared the guilt and punishment 
of the Earl of Kildare, and all who were as- 
sociated with him in his enterprise, and all 
that was required to insure their punishment 
was to prove that association. 

If this were not so, then the act was mere 
brutum fulmen, and the parties other than 
the earl could only be punished, notwith- 
standing the act, by proof of their guilt be- 
fore some competent tribunal. 

No person is pointed out in the act of con- 
gress, either by name or by description,, 
against whom it is to operate. The oath is 
onlj^ required of those who propose to ac- 
cept an office or to practise law; and as a 
prerequisite to the exercise of the functions 
of the lawyer, or the officer, it is demanded 
of all persons alike. It is said to be direct- 
ed, as a class, to those alone who were en- 
gaged in the Rebellion; but this is manifest- 
ly incorrect, as the oath is exacted alike 
froiu the loyal and disioyal, under the same 
circumstances, and rone are compelled to 
take it. Neither does the act declare any 
conviction, either of persons or classes. If 
so, who are they, and of what crime are 
they declared to be guilty? Nor does it pro- 
nounce any sentence, or inflict any punish- 
ment. If by any possibilitj' it can be said 
to provide for conviction and sentence, 
though not found in the act itself, it leaves 
the party himself to determine his own guilt 
or innocence, and pronounce his own sen- 
tence. It is not, then, the act of congress, 
but the party interested, that tries and con- 
demns. We shall see. when we come to the 
discussion of this act in its relation to ex 
post facto laws, that it inflicts no punish- 
ment. 

A statute, then which designates no crim- 
inal, either by name or description — which 
declares no guilt, pronounces no sentence. 



220 



EX POST FACTO LAWS. 



and inflicts no punishment— can in no sense 
be called a bill of attainder. 

2. Passing now to consider whether the 
statute is an ex post facto law, we tind that 
the meaning of that term, as used in the 
■constitution, is a niattei which has been fre- 
quently before this court, and it has been so 
well defined as to leave no room for contro- 
versy. The only doubt which can arise is 
as to the character of che particular case 
claimed to come within the definition, and 
not as to the definition of the phrase itself. 

All the cases agree that the term is to be 
applied to criminal causes alone, and not to 
civil proceedings. In the language of Jus- 
tice Story, in the case of Watson v. Mercer, 
8 Pet. 88. "Ex post facto laws relate to penal 
and criminal proceedings, which impose pun- 
ishment and forfeiture, and not to civil pro- 
ceedings, which affect private rights retro- 
spectively." Calder v. Bull, 3 Dall. 386; 
Fletcher v. Peck, 6 Cranch, 87; Ogden v. 
Saunders, 12 Whtat. 2b6; Satterlee v. Mat- 
thewson, 2 Pet. 380. 

The first case on the subject is that of 
Calder v. Bull, and it is the one in which the 
doctrine concerning ex post facto laws is 
most fully expounded. The court divides 
all laws which come within the meaning of 
that clause of the constitution into four 
classes: 

1st. Every law that makes an action done 
before the passing of the law, and which was 
innocent when done, criminal, and punishes 
such action. 

2d. Every law that aggravates a crime, 
or makes it greater than it was when com- 
mitted. 

3d. Evei-y law that changes the punish- 
ment, and inflicts a greater punishment than 
the law annexed to the crime when com- 
mitted. 

4th. Every law that alters the rale of evi- 
dence, and receives less or different testi- 
mony than the law required at the time of 
the commission of the offence to convict the 
offender. 

Again, the court says, in the same opinion, 
that "the true distinction is between ex post 
facto laws, and retrospective laws;" and 
proceeds to show that, however unjust the 
latter may be, they are not prohibited by the 
constitution, while tne former are. 

This exposition of the nature of ex post 
facto laws has never been denied, nor has 
any court or any commentator on the con- 
stitution added to the classes of laws here 
set forth, as coming within that clause of 
the organic law Ir looking carefully at 
these four classes of laws, two things strike 
the mind as common to them all: 

1st. That they contemplate the trial of 
some person charged with an offence. 

2d. That they contemplate a punishment 
of the person found guilty of such offence. 

Now. it seems to me impossible to show 
that the law in question contemplates either 
the trial of a person for an offence commit- 



ted before its passage, or the punishment of 
any person for such an offence. It is true 
that the act requiring an oath provides a 
penalty for falsely taking it. But this pro- 
vision is prospective, as no one is supposed 
to take the oath until after the passage of 
the law. This prospective penalty is the on- 
ly thing in the law which partakes of a crim- 
inal character. It is in all other respects a 
civil proceeding Jt is simply an oath of 
office, and it is requii*ed of all office-holders 
alike. As far as I am informed, this is the 
first time in the history of jurisprudence that 
taking an oath of office has been called a 
criminal proceeding. If it is not a criminal 
proceeding, then, by all the authorities, it is 
not an ex post facto law. 

No trial of any person is contemplated by 
the act for any past oft'ence. Nor is any par- 
ty supposed to be charged with any offence 
in the only proceeding which the law pro- 
vides. 

A person proposing to appear in the court 
as an attorney is asked to take a certain 
oath. There' is no charge made against him 
thAt he has been guilty of any of the crimes 
mentioned in that oath. There is no prosecu- 
tion. There is not even an implication of guilt 
by reason of tendering him the oath, for it is 
required of the man who has lost everything 
in defence of the government, and whose 
loyalty is written in the honorable scars 
which cover his bodv, the same as of the 
guiltiest traitor in the land. His refusal to 
take the oath subjects him to no prosecu- 
tion. His taking it clears him of no guilt, 
and acquits him of do charge. 

Wher^. then, is this ex post facto law 
which tries and punishes a man for a crime 
committed before it was passed? It can 
only be found in those elastic rules of con- 
struction which cramp the powers of the fed- 
eral government when they are to be exer- 
cised in certain directions, and enlarge them 
when they are to be exercised in othei*s. No 
more striking example of this could be given 
than the cases before us, in one of which 
the constitution of the United States is held 
to confer no power on congress to prevent 
traitors practising in her courts, while in the 
other it is held to confer power on this court 
to nullify a provision of the constitution of 
the state of Missouri, relating to a qualifica- 
tion required of ministeis of religion. 

But the fatal vice in the reasoning of the 
majority is in the meaning which they at- 
tach to the word punishment, in its applica- 
tion to this law, and in its relation to the 
definitions which have been given of the 
phrase, ex post facto laws. 

Webster's second definition of the word 
"punish" is this; "In a loose sense, to af- 
flict with punishment, &c., with a view to 
amendment, to chasten " And it is in this 
loose sense that the word is used by this 
court, as synonymous with chastisement, 
correction, loss, or suffering to the party 
supposed to be ijunished, and not in the legal 



VALIDITY OF EX POST FACTO STATUTES. 



221 



sense, which signifies a penalty Inflicted for 
the commission of crime. 

And so, in this sense, it is said that where- 
as persons who had be^n guilty of the of- 
fences mentioned in the oath were, by the 
laws then In force, only liable to be punish- 
ed with death ana confiscation of all their 
property, they are by a law passed since 
these offences were committed, made liable 
to the enormous additional punishment of be- 
ing deprived of the right to practise law! 

The law in question does not in reality de- 
prive a person guilty of the acts therein de- 
scribed of any right which he possessed 
before; for it is equally sound law, as it is 
the dictate of good sense, that a person who, 
in the language of the act, has voluntarily 
borne arms against the government of the 
United States while a citizen thereof, or 
who has voluntarily given aid, comfort, coun- 
sel, or encouragement to persons engaged 
in armed hostility to the government, has, 
by doing those things, forfeited his right 
to appear in her courts and take part in the 
administration of her laws. Such a person 
has exhibited a trait of character which, 
without the aid of the law in question, au- 
thorizes the court to dtclare him unfit to 
practise before it, and to strike his name 
from the roll of its attorneys if it be found 
there. 

I have already shown that this act provides 
for no indictment or other charge, that it 
contemplates and admits of no trial, and I 
now proceed to show that even if the right 
of the court to prevent an attorney, guilty of 
the acts mentioned, from appearing in its 
forum, depended upon the statute, that still 
it inflicts no punishment in tlie legal sense 
of that term. 

"Punishment," says Mr. Wharton in his 
law lexicon, "is the penalty for transgress- 
ing the laws;" and this is, perhaps, as com- 
prehensive and at the same time as accurate 
a definition as can be given. Now, what 
law is it whose tmnsgression is punished in 
the case before as? None is referred to in 
the act, and theie is nothing on its face to 
show that it was intended as an additional 
punishment for any offence described in anj' 
other act. A part of the matters of which 
the applicant is required to purge himself 
on oath may amount to treason, but surely 
there could be no intention or desire to in- 
flict this small additional punishment for a 
crime v>-hose penalty already was death and 
confiscation of property. 

In fact the word "punishment" is used by 
the court in a sense which would make a 
great number of laws, pt^rtaking in no sense 
of a criminal character, laws for punish- 
ment, and therefore ex post facto. 

A law, for instance, v^hich increased the 
facility for detecting frauds by compelling 
a party to a civil proceeding to disclose his 
transactions under oath would result in his 
punishment in this sense, if it compelled him 
to pay an honest debt which could not be 



coerced from him before. But this law comes 
clearly within the class described by this 
court in Watson v. Mercer, as civil proceed- 
ings which affect private rights retrospec- 
tively. 

Again, let us suppose that several persons 
afflicted with a form of insanity hei'etofore 
deemed harmless, shall be found all at once 
to be dangerous to the lives of persons with 
whom they associate. The state, therefore, 
passes a law that all persons so affected 
shall be kept in close conflnemeut until their 
recovery is assured. Here is a case of pun- 
ishment in the sense used by the court for 
a matter existing before the passage of the 
law. Is it an ex post facto law? And, if 
not, in what does it differ from one? Just 
in the same manner that the act of congress 
does, namely, that the proceeding is civil 
and not criminal, and that the imprisonment 
in the one case and the prohibition to prac- 
tise law in the other, are not punishments 
in the legal meaning of that term. 

The civil law maxim, "Nemo debet bis vex- 
ari, pro una et eadam causa," has been long 
since adopted into the common law as ap- 
plicable both to civil and criminal proceed- 
ings, and one of the amendments of the con- 
stitution incorporates this pi'inciple into that 
instrument so far as punishment affects life 
or limb. It results from this rule, that no 
man can be twice lawfully punished for the 
same offence. We have already seen that 
the acts of which the party is required to 
purge himself on oath constitute the crime 
of treason. Now, if the judgment of the 
court in the cases before us, instead of per- 
mitting the parties to appear without taking 
the oath, had been the other way, here would 
have been the case of a person who, on the 
reasoning of the majority, is punished by the 
judgment of this court for the same acts 
which constitute the crime of treason. 

Yet, if the applicant here should afterwards 
be indicted for treason on account of these 
same acts, no one will pretend that the pro- 
ceedings here could be successfully pleaded 
in bar of that indictment. But why not? 
Simply because theie is here neither trial nor 
punishment within the legal meaning of 
these terms. 

I maintain that the purpose of the act of 
congress Avas to require loyalty as a qual- 
ification of all who practise law in the na- 
tional courts. The majority say that the 
purpose was to impose a punishment for 
past acts of disloyalty. 

In pressing this argument it is contended 
by the majority that no requirement can be 
justly said to be ? qualification which is not 
attainable by all, and that to demand a qual- 
ification not attainable by all is a punish- 
ment. 

The constitution of the United States pro- 
vides as a qualification for the oflices of 
president and vice-president that the person 
elected must be a native-born citizen. Is 
this a punishment to all those naturalized 



222 



EX POST FAC-TO LAWS. 



•citizens wlio can never attain tliat qnr^fica- 
tion? Tlie constitntions of nearly all the 
states require as a qualification for voting 
that the voter shall be a white male citizen. 
Is this a punishment for all the blacks who 
can never become white? 

Again, it was a qualification required by 
some of the state constitutions, for the of- 
fice of judge, that the person should not be 
over sixty years of age. To a very large 
number of the ablest lawyers in any state 
this is a qualification tc^ which they can nev- 
er attain, for everv year removes them far- 
ther away from the de^rignated age. Is it a 
punishment? 

The distinguished commentator on Ameri- 
can law, and chancellor of the state of New 
York, was deprived of that office by this 
provision of the constitution of that state, 
and he was thus, in the midst of his useful- 
ness, not only turned out of office, but he was 
forever disqualified from holding it again, by 
a law passed after he had accepted the office. 

This is a much stronger case than that of 
a disloj-al attorney forbidden by law to prac- 
tise in the courts, yet no one ever thought 
the law was ex post facto in the sense of 
the constitiition of the United States. 

Illustrations of this kind could be multi- 
plied indefinitely, but they are unnecessary. 

The history of the time when this statiite 
was passed — the darkest hour of our great 
struggle— the necessity for its existence, the 
humane character of the president who 
signed the bill, and the face of the law itself, 
all show that it was purely a qualification, 
exacted in self-defence, of all who took part 
in administering the government in any of 
its departments, and that it was not passed 
for the purpose of inflicting punishment, 
liowever merited, for past offences. 

I thinlv I have now shown that the statute 
in question is within the legislative power of 
congress in its control over the courts and 
their officers, and that it was not void as 
being either a bill of attainder or an ex post 
facto law. 

If I am right on the questions of qual- 
ification and punishment, that discussion dis- 
poses also of the proposition, that the par- 
don of the president relieves the party ac- 
cepting it of the necessity of taking the oath, 
even if the law be valid. 

I am willing to concede that the presi- 
dential pardon relieves the party from all 
the penalties, or in oth^r words, from all the 
punishment, which the law inflicted for his 
offence. But it relieves him from nothing 
more. If the oath required as a condition 
to practising law is not a pvmishment, as I 
think I have shown it is not, then the pardon 
of the president has no effect in I'eleasing 
him from the reqiiiremeut to take it. If it 
is a qualification which congress had a right 
to prescribe as necessary to an attorney, 
then the president cannot, by pardon or oth- 
erwise, dispense with the law requiring such 
qualification. 



This is not only the plain rule as between 
the legislative and executive departments of 
the government, but it is the declaration of 
common sense. The man who, by counter- 
feiting, by theft, by murder, or by treason, 
is rendered unfit to exercise the functions of 
an attorney or counsellor-at-law, may be 
saved by the executive pardon from tlie pen- 
itentiary or the gallows, but is not thereby 
restored to the qualifications which are es- 
sential to admission to the bar. No doubt 
it will be found that very many persons 
among those who cannot take this oath, de- 
serve to be relieved from the prohibition of 
the law; but this in no wise depends upon 
the act of the president in giving or refusing 
a pardon. It remains to the legislative pow- 
er alone to prescribe under what circumstan- 
ces this relief shall be extended. 

In regard to the case of Cummings v. 
State of Missom-i, allusions have been made 
in the course of argument to the sanctity of 
the ministerial office, and to the inviolability 
of religious freedom in this country. 

But no attempt lias been made to show that 
the constitution of the United States inter- 
poses any such protection between the state 
governments and their own citizens. Nor 
can anything of this kind be shown. The 
federal constitution contains but two provi- 
sions on this sul).iect. One of these forl)ids 
congress to make any law respecting the es- 
tablishment of religion, or prohibiting the 
free exercise thereof. The other is, that no 
religious test shall ever be required as a 
qualification to any office or public trust un- 
der the United States 

No restraint is placed by that instrument 
on the action of the states; but on the con- 
trary, in the language of Story, "The whole 
power over the subject of religion is left ex- 
clusively to the state governments, to be 
acted upon according to their own sense of 
justice and the state constitutions." Const. 
§ 1878. 

If there ever was a case calling upon this 
court to exercise all the power on this sub- 
ject which properly belongs to it, it was the 
case of Permoli v. Municipality, No. 1, 3 
How. 589. 

An ordinance of the first municipality of 
the city of New Orleans imposed a penalty 
on any priest who should officiate at any fu- 
neral, in any other church than the obituary 
chapel. Mr. Permoli, a Catholic priest, per- 
formed the funeral services of his church 
over the body of one of his parishioners, in- 
closed in a coffin, in the Roman Catholic 
Church of St. Augustine. For this he was 
fined, and relying upon the vague idea ad- 
vanced here, that the federal constitution 
protected him in the exercise of his holy 
functions, he brought the case to this court. 

But hard as that case was, the court re- 
plied to him in the following language: "The 
constitution (of the United States) makes 
no provision for protecting the citizens of 
the respective states in their religious lib- 



VALIDITY OF EX POST FACTO STATUTES. 



223 



erties; this is left to tlie state constitutions 
and laws; nor is there any inhibition im- 
posed by tlae constitution of the United 
States in this respect on tlie states." Mr. 
Permoli's writ of error was, therefore, dis- 
missed for want of jnHsdiction. 

In that case an ordinance of a mere local 
corporation forbade a priest, loyal to his gov- 
ernment, from performing what he believed 
to be the necessary rites of his church over 
the body of his departed friend. This court 
said it could give him no relief. 

In this case the constitution of the state of 
Missouri, the fundamental law of the people 
of that state, adopted by their popular vote, 
declares that no priest of any church shall 
exercise his ministerial functions, unless he 
will show, by his own oath, that he has borne 
a true allegiance to his government. This 
court now holds this constitutional provision 
void, on the ground that the federal consti- 



tution forbids it. I leave the two cases to 
speak for themselves. 

In the discussion ot these cases I have said 
nothing, on the one hand, of the great evils 
inflicted on the country by the voluntary ac- 
tion of many of those persons affected by 
the laws under consideration; nor, on the 
other hand, of the hardships which they are 
now suffering, much more as a consequence 
of that action than of any laws which con- 
gress can possibly frame. But I have en- 
deaA'ored to bring to the examination of the 
grave questions of constitutional law in- 
volved in this inquiry those principles alone 
wliich are calculated to assist in determin- 
ing what the law is, rather than what, in 
my private judgment, it ought to be. 

Mr. Chief Justice CHASE, Mr. Justice 
SWAYNE, and Mr. Justice DAVIS concur 
in this dissent. 



WEST PUBLISHINU CO., PRINTERS AND 8TERKOTYPERS, ST. PAUL, MINN. 












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